B K (Migration)

[2023] AATA 1464

B K (Migration) [2023] AATA 1464 (12 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BISHAL B K

REPRESENTATIVE:  Mr RAJU KC (MARN: 1799073)

CASE NUMBER:  2208134

HOME AFFAIRS REFERENCE(S):         BCC2021/2375328

MEMBER:Ian Berry

DATE:12 May 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 12 May 2023 at 1:43pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – relationship ceased – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 116, 325, 360
Migration Regulations 1994

CATCHWORDS

SZIMG V Minister of Immigration and Citizenship and Refugee Review Tribunal [2008] FCA 368

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 May 2022 made by a delegate of the Minister for Home Affairs (DOHA) to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   a.The delegate cancelled the visa under s 116(a) on the basis that the applicant confirmed that he is no longer in a relationship with Ms Rista B K Shankar and therefore is neither a spouse or de facto partner. The delegate considered whether there were circumstances The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The delegate considered:

   b.The purpose of the visa holders travel to and stay in Australia;

   c.The extent of the applicant’s compliance with visa conditions;

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

   e.Circumstances in which the ground for cancellation arose;

   f.The visa holders past and present behaviour toward the DOHA;

   g.Any consequential cancellations that may result

   h.Legal consequences of a decision to cancel the applicant’s visa.

   i.Australia’s international obligations

2. While the hearing had been scheduled for 28 March 2023, the applicant decided to inform the Tribunal to proceed to decide his matter ‘on the papers’.  The Tribunal considered the decision of Rares J in SZIMG V Minister of Immigration and Citizenship and Refugee Review Tribunal [2008] FCA 368. In summary the Federal Court of Australia held that to the Tribunal was entitled to proceed to decide the review on the basis of the applicant’s consent to the matter been determined without hearing, in circumstances where consent was given after the Tribunal had informed the applicant that he could not decide the review in his favour on the available material. In that case the Tribunal proceeded without a hearing on the applicant’s consent which it did so under sections 360(2)(b) and 425(2)(b).

3. The applicant was represented in relation to the review.

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(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?

6. 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.

   Facts

7. DOHA sent to the applicant by registered post, a document entitled ‘Notice of Intention to Consider Cancellation under Section 116 of the Migration Act 1958’ dated 26 April 2022.

8. On 9 May 2022, the applicant’s newly appointed migration representative advised  DOHA that the applicant no longer was a relationship with Ms Shankar.

9. On 31 May 2022, DOHA decided to cancel the applicant’s visa on the ground that he was no longer a member of the family unit of Ms Shanker.

10. On 3 June 2022, the applicant made application to review the delegate’s decision that to his visa be cancelled.

11. The Tribunal set the applicant’s matter for hearing on 28 March 2023. The applicant’s representative requested the Tribunal to make its decision ‘on the papers’.

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

    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’.

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Ian Berry
    Member