Arora (Migration)

[2024] AATA 3096

Arora (Migration) [2024] AATA 3096 (13 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avneet Singh Arora

REPRESENTATIVE:  Mr Harjeet Singh (MARN: 1679096)

CASE NUMBER:  2318568

HOME AFFAIRS REFERENCE(S):          BCC2023/3256222

MEMBER:Mary Sheargold

DATE:13 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

Statement made on 13 August 2024 at 8:58am

CATCHWORDS
MIGRATION – Cancellation – Skilled Work Regional (Provisional) visa – Subclass 491 –applicant is no longer the member of the family unit of the primary visa holder - breakdown of marriage – suffered significant levels of emotional abuse during his marriage – remarried an Australian permanent resident – significant ties to Australia – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2, cl 491.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 November 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(a) on the basis that he is no longer the member of the family unit of the primary visa holder, Ms Diksha Wadhwa. 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 by MS Teams video link on 18 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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) - Circumstances permitting grant no longer exist

7. A visa may be cancelled under s 116(1)(a) if the Minister is satisfied the circumstances which permitted the grant of the visa no longer exist.

8. Mr Arora was granted a Subclass 491 visa by virtue of satisfying cl 491.311 of Schedule 2 to the Regulations.  He was the spouse of Ms Diksha Wadhwa at the time the visa was granted.  Mr Arora has provided the Department with a copy of their marriage certificate dated 28 December 2015.

9. Mr Arora has set out for the Tribunal in extensive detail the circumstances that led to the breakdown of his marriage to Ms Wadhwa.  He states that he ceased living with Ms Wadhwa on or around 23 January 2023, when he became stressed and distressed to the point that he could no longer bear to be around his wife.

10. At the hearing, Mr Arora detailed significant incidents that had accrued during the length of their relationship, including amongst other things Ms Wadhwa’s two unilateral decisions to terminate pregnancies against Mr Arora’s wishes.  Mr Arora claims that, as is customary in a marriage between Indians, he was expected to and happily provided full financial support for Ms Wadhwa throughout their relationship.  He bore all costs of living, and Ms Wadhwa was able to save her own income for her personal use.  Further to that, Mr Arora told the Tribunal that Ms Wadhwa decided to open her own bank account in 2018, and that she drained the funds in their joint bank account to transfer to herself, and helped herself to money from that account whenever she desired because it was her husband’s job to provide for her.

11. Mr Arora claims that Ms Wadhwa used her own income and the money she removed from their joint bank account to fund a lavish independent lifestyle. He claims that she frequently went out with her friends without him, and that she would spoil them with gifts but that she never spent any money on him.  He stated that after she terminated a second pregnancy to him in 2022, he realised he could not continue on in the marriage.

12. Mr Arora claims that he has always abided by all of his visa conditions, and states that he notified the Department of his change in address within 7 days of moving out of the home he had shared with Ms Wadhwa.  Mr Arora admits that he and Ms Wadhwa are now divorced, and he told the Tribunal that he remarried earlier this year.

13. The Tribunal notes that a non-disclosure certificate was issued by the Department pursuant to s 375A of the Act, stating that disclosure of a certain chain of email correspondence in its file would be contrary to the public interest because the information contained within that email exchange had been provided to the Department in confidence. 

14. The Tribunal wrote to the applicant on 27 May 2024 enclosing a copy of the certificate and stating its preliminary view that the certificate appeared to be valid.  The Tribunal informed the applicant that the gist of the information in that protected document contained information relating to his relationship breakdown.  The applicant was invited to comment in writing on the validity of the certificate by 11 June 2024.  On 11 June 2024, the applicant’s representative wrote to the Tribunal stating that his client needed access to the documents protected by the certificate in order to mount a proper argument in relation to the visa cancellation review.

15. The Tribunal finds the certificate to be valid, and has not disclosed the material to the applicant.  The Tribunal notes that the allegations set out in that email correspondence were not substantiated with any form of corroborating evidence, despite the involvement of legal practitioners in that email exchange.  In the absence of any supporting evidence to prove those allegations, the Tribunal affords little weight to them in its consideration of this application.  It appears the claims post-date Mr Arora’s decision to leave the relationship by several months and were not investigated further by the Department.  The allegations make no material difference to the consideration of whether or not Mr Arora remains married to Ms Wadhwa.

16. The Tribunal finds, and Mr Arora accepts, that the circumstance permitting the grant of his visa, being that he is the member of the family unit of a person who holds a Subclass 491 visa, no longer exists.

17. 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

18. 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’.

19. At the hearing, Mr Arora explained his reasons for believing his visa should not be cancelled. He freely acknowledged that it was his own independent decision to leave his relationship after what he described as years of emotional abuse at the hands of Ms Wadhwa.  Mr Arora argued that he has established his life in Australia now, that his work as a long haul truck driver has been critical to the Australian economy especially during the Covid-19 pandemic, and that he has recently remarried to an Indian national who was granted a permanent residency visa in February 2024 and who is unwilling to return to India.

    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

20. Mr Arora came to Australia to support his wife as she pursued her dream to study and work in a foreign country.  The Tribunal is satisfied that Mr Arora had fulfilled that purpose as the secondary holder of his ex-wife’s visas.  The Tribunal is satisfied that this purpose no longer exists for Mr Arora.

21. However, since the time of the delegate’s decision, Mr Arora has remarried an Australian permanent resident, and the Tribunal notes there may be some administrative burden to Mr Wadhwa becoming connected to that visa should this visa be cancelled. 

22. Therefore, considering Mr Arora’s history of upholding the purpose of his travel to Australia and noting his intention to continue to support his new wife with her life here, the Tribunal gives this consideration a little weight against cancelling the visa.

    The extent of compliance with visa conditions

23. Mr Arora told the Tribunal that he has fully complied with all conditions attached to this visa as well as the student visa, graduate visa, and bridging visas he has held in the past.  In fact, Mr Arora notified the Department of his change in address in January 2023, several months before the Notice of Intention to Consider Cancellation was issued.  There is no evidence before the Tribunal to suggest that Mr Arora has not complied with any conditions imposed on his visas.  Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

    Degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)

24. The Tribunal accepts Mr Arora’s evidence that he will suffer serious emotional hardship if his visa is cancelled.  He has cited examples of his ex-wife’s ongoing emotional abuse over the course of their marriage and he notes that he is still trying to recover from that experience.  Further, the fact that he has recently remarried adds a layer of complexity to this consideration, because if his visa is cancelled, he may no longer be able to live in the same country as his wife.

25. Further, Mr Arora has been living in Australia since November 2016 and he has only returned to India twice during that time.  The Tribunal is satisfied that he has developed significant ties to Australia during that time, including in his workplace and with his new wife and her family.

26. Mr Arora has been in stable employment as a long haul truck driver for many years, and his current income is significant as a result.  This is partly because of the shortage of experienced B double truck drivers available in Australia following the Covid-19 pandemic.

27. The Tribunal is satisfied that Mr Arora will face real hardship – financial, psychological and emotional – if his visa status is not regularised.  The Tribunal gives this consideration a little weight against cancelling the visa.

    The circumstances under which the ground for cancellation arose

28. Mr Arora willingly came to Australia as a dependent on his ex-wife’s student visa, and willingly remained in Australia as a dependent on her Graduate visa as well as this visa.  He admits and accepts that the decision to end that marriage was his, and that he initiated the separation by leaving their marital home and moving into new accommodation.  He notified the Department of this at the time.

29. Although it was Mr Arora’s free decision to leave his ex-wife, the Tribunal accepts that he did so because he had suffered significant levels of emotional abuse during his marriage.  He has claimed that Ms Wadhwa expected him to provide for the family, that he sacrificed his own opportunity to study and enhance his career prospects by choosing to work and support her fully, and that Ms Wadhwa did not demonstrate a willingness to build a shared life with him.  He is particularly affected by her decision to terminate both pregnancies that occurred during their marriage.

30. Although the Tribunal is satisfied that Mr Arora had reasonable grounds for leaving his marriage, he did give cause to the circumstance under which the ground for cancelling his visa arose.  Therefore, the Tribunal gives this factor a little weight in favour of cancelling the visa.

    Mr Arora’s past and present behaviour towards the Department

31. At the hearing, Mr Arora stated that he has always complied with his visa conditions, including notifying the Department when he changed address after moving out of the home he shared with Ms Wadhwa.  He engaged a representative to assist in his response to the NOICC and this was done in a timely manner.

32. There is no other information before the Tribunal to demonstrate that Mr Arora has behaved in anything less than a frank and forthright manner towards the Department to date.  The Tribunal therefore gives this consideration a little weight against cancelling the visa.

    Consequential cancellations

33. Mr Arora is the secondary visa holder in this case.  The circumstances do not give rise to any consequential visa cancellations under s 140 of the Act.  The Tribunal is not able to give this consideration any weight for or against a decision to cancel the visa.

    Legal consequences of a decision to cancel the visa

34. Cancelling Mr Arora’s visa would result in application of section 48 of the Act, meaning he would be limited in terms of other visa applications he could lodge validly while remaining in Australia.  He currently holds a BE and his wife holds a Subclass 189 visa.

35. Noting the impact cancellation has already had on Mr Arora, and understanding the implications of holding a BVE in the medium to long term, the Tribunal gives this consideration some weight against cancelling the visa.

    Australia’s international obligations

36. Mr Arora has never applied for protection nor has he indicated to the Tribunal that he fears harm if he is returned to India.  The Tribunal has considered the obligation in relation to non-refoulement under the Refugees Convention and the Refugees Protocol, as well as the Convention Against Torture and the International Covenant on Civil and Political Rights and is satisfied that removing Mr Arora from Australia will not leave Australia in breach of any of its obligations under those instruments.

37. At the hearing, Mr Arora confirmed that he does not have any children.  There is no information before the Tribunal to suggest that cancelling Mr Arora’s visa would result in Australia breaching its obligations under the Convention on the Rights of the Child.

38. The Tribunal notes that although none of Australia’s international obligations would be enlivened by an attempt to return Mr Arora to India, it does not consider it necessary to give this consideration weight in favour of cancelling his visa.

    Any other relevant matters

39. Mr Arora has submitted that he has been a long term employee of Holliers Transport Group, where drives B double trucks from Adelaide to the South Australian border en route to Sydney, and back again.  The Tribunal is aware of the shortage of experienced and reliable long haul truck drivers across this route since the Covid-19 pandemic.  The Tribunal is satisfied that the loss of even one worker from this sector at this time would cause hardship for the organisations providing transport of goods between NSW and South Australia, a designated regional area in Australia.  The Tribunal acknowledges Mr Arora’s long term and extensive work history in this sector, and so gives this matter a little weight against cancelling the visa.

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

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

    Mary Sheargold
    Member