Bhullar (Migration) - [2024] AATA 591

Bhullar (Migration) [2024] AATA 591 (29 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Raminder Singh Bhullar
REPRESENTATIVE:  Ms Carina Ford
CASE NUMBER:  2314526
HOME AFFAIRS REFERENCE(S):          BCC2021/1929862
MEMBER:Antonio Dronjic
DATE:29 January 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 29 January 2024 at 9:30am
CATCHWORDS
MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – fact or circumstance no longer the case or no longer exists – divorced and no longer member of family unit of primary visa holder wife – discretion to cancel visa – close relationship with child, and usually primary caregiver – best interests of child, currently living interstate with mother – possible relocation – mental health – mandatory legal consequences – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(a)
Migration Regulations 1994 (Cth), r 2.12
CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1429
COT15 v MIBP (No 1) (2015) 236 FCR 148
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 September 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).
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 or circumstance 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.
The applicant applied to the Tribunal on 15 September 2023 for review of the visa cancellation and with his application submitted a copy of the primary decision record.
On 20 November 2023, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 11 January 2024.
On 4 January 2024, the applicant’s representative provided submissions and documentary evidence in support of the application. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
The applicant appeared before the Tribunal on 11 January 2024 to give evidence and present arguments. The applicant was represented in relation to the review.
The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s 116(1)(a) of the Act as the delegate concluded that he is no longer a member of the family unit of Ms Bhullar.
The Tribunal noted that in his statement, the applicant conceded that the ground for cancellation under s 116(1)(a) of the Act was made out at the time of the cancellation decision as he was no longer a member of the family unit of Ms Bhullar.
The applicant is a 34-year-old citizen of India. On 14 February 2013, the applicant married his former wife, Ms Bhullar, in India. The couple share one son from the marriage, Hukamjit Singh Bhullar, born on [Date].
The applicant’s parents live in India. His only sister lives in Australia with her husband and children and all of them are Australian citizens. In India, the applicant completed an equivalent of Year 12 and worked at the family farm.
The family arrived in Australia on 4 September 2016 holding visitor visas to attend the wedding of the applicant’s sister, Ms Jaspinder Kaur. The applicant’s former wife subsequently applied and was granted several student visas. Mr Bhullar and their son were included as members of her family unit.
On 18 November 2020, Ms Bhullar, the applicant and their child were granted Subclass 491 – Skilled Work Regional (Provisional) visas with the stay period to 18 November 2028. On 27 February 2022, Ms Bhullar informed the Department that on 11 July 2021 she separated from the applicant.
A notice of intention to consider cancellation (NOICC) was issued by the Department on 28 February 2022. On 10 March 2022, the applicant responded to the NOICC. On 13 September 2023, the delegate proceeded to cancel the applicant’s visa.
Ms Bhullar filed for divorce in the Federal Circuit and Family Court of Australia on 20 September 2022. The applicant filed a response to the divorce application on 29 November 2022 to include that their child will reside with him primarily, and spend alternating holiday periods with Ms Bhullar, as previously mutually agreed upon. On 9 December 2022, the divorce application was granted and became effective on 10 January 2023.
The applicant and his former spouse resided mainly in regional Victoria. In 2019, the applicant and Ms Bhullar moved to Tasmania for a period of six to seven months where Ms Bhullar undertook her studies. During this period, their child was living in India with the applicant’s parents. Due to COVID-19 related travel restrictions, the child was unable to return to Australia until 23 January 2021.
Ms Bhullar was offered a job as an aged care nurse and the family relocated to Nhill (Victoria). In July 2021, the relationship between the applicant and Ms Bhullar broke down and the applicant and his son relocated to his sister’s house. Currently, the applicant is living at Clyde North, Victoria, and is employed as a truck driver on a full-time basis.
Ms Bhullar and their son are currently living in Mackay, Queensland, where Ms Bhullar works as an enrolled nurse and the child attends school.
The applicant gave evidence that it was Ms Bhullar who decided to end their marriage. He is not aware of her reasons but stated that no form of domestic violence took place during the relationship.
On 7 July 2021, the applicant and Ms Bhullar signed a statutory declaration according to which their son was to live with his father during the school days and his mother during the alternate school holidays. The child attended Clyde North Primary School from July 2019. This arrangement stayed in place until December 2022 when Ms Bhullar removed their child from the primary care of the applicant in order to reside in Queensland on a permanent basis.
The applicant stated that, although initially he did not agree with this new arrangement, he consented due to the wishes of his son and his desire to maintain a harmonious relationship with Ms Bhullar. According to his evidence, the parties verbally agreed that the child would remain resident in Queensland for one year with Ms Bhullar, before returning to the primary care of the applicant for the 2024 school year.
The applicant has maintained contact with his son by frequently calling or messaging him. He also travelled to Queensland on three occasions to be with his son. However, there is very limited contact with his former wife.
The applicant gave evidence that Ms Bhullar and his son travelled to India in November 2023. In October 2023, the applicant received a text message from Ms Bhullar informing him that they will be returning to Australia on 27 January 2024.
The applicant stated that he was unable to enrol his son into school as he needed to obtain his son’s school records from Queensland. He was reassured by the school official that he would be able to do so upon his son’s return from India.
When questioned, the applicant stated that if the child remains living in Queensland with his mother, he will consider relocating there to be closer to his son.
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
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, this includes 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?
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.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Subclass 491 visa on 18 November 2020 as a dependant and a member of the family unit of the primary visa holder, Ms Bhullar. The applicant’s relationship with Ms Bhullar had ceased and the delegate concluded that the applicant ceased to be a member of the family unit of the primary visa holder and no longer met the requirements of reg 1.12(2)(a).
In his written response to the NOICC, the applicant confirmed that he is no longer living with the primary visa holder due to a breakdown in their relationship and that, on 11 July 2021, his wife informed him that she wanted to end the relationship and preferred that they lived separately.
With his review application, the applicant submitted a copy of the Divorce Certificate as evidence that the divorce application was granted and effective from January 2023.
Based on the evidence before it, including the applicant’s oral evidence given at the hearing, the Tribunal finds that the applicant is no longer in a spousal or de facto relationship with Ms Bhullar.
The Tribunal further finds that the applicant was granted the visa based on being a spouse or de facto partner and a member of the family unit of Ms Bhullar. The Tribunal finds that this fact or circumstance no longer exists. The Tribunal finds 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 that no longer exists. The Tribunal finds that there are grounds to cancel the visa under s 116(1)(a) of the Act.
For these reasons, the Tribunal finds 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 power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Migration Regulations 1994 (Cth) (the 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’.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].
Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.
The 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
The Subclass 491 – Skilled Work Regional (Provisional) visa is a temporary visa which enables the visa holder to remain in Australia for a specified period. The applicant was granted the visa as a secondary applicant. The purpose of that visa and of the applicant’s stay in Australia was to enable the applicant to remain with his spouse. However, the Tribunal has found that the relationship is no longer in existence. The Tribunal finds that the applicant is not able to fulfil the purpose of his visa because he is no longer in a relationship with the primary visa holder.
However, the policy specifies that delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia when considering whether to utilise their discretionary powers.
Based on the evidence before it, the Tribunal finds that the applicant’s only son, with whom the applicant has a very close relationship, is living in Australia. The Tribunal finds this to be a compelling reason for the applicant to remain in Australia. The applicant has been the primary caregiver for a significant period since his marriage breakdown and is hoping to resume this role upon his son’s return to Australia.
The Tribunal gives some weight to this consideration against the cancellation of his visa.
The extent of compliance with visa conditions
There is no information before me to indicate that the applicant has not complied with any conditions attached to the visa. The Tribunal gives this consideration some weight against cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In her submissions of 4 January 2024, the applicant’s representative stated that, if the applicant’s visa remained cancelled, this would significantly impact his son, as well as his sister, brother-in-law and nephews who reside in Australia as citizens.
It was submitted and the Tribunal accepts that the removal of a parent from a child’s life imposes significant hardship on both the child and the applicant. The child is nine years of age and has already suffered because of his parents’ marriage breakdown.
The applicant’s sister, Ms Jaspinder Kaur, has provided a written statement dated 3 January 2024 explaining the impact her brother’s visa cancellation would have on her and her family. It was submitted that the applicant and his sister have a strong sibling bond and that, since the applicant’s arrival in Australia, they have always endeavoured to reside near each other. Both currently remain resident in Clyde North in order to facilitate the continuous integration of their families.
It was further submitted that the applicant and his sister’s children have a very close relationship and that they will also be adversely affected if their uncle were not permitted to remain in Australia.
The Tribunal accepts that Ms Kaur, her husband and two sons have a close relationship with the applicant and that all of them will experience distress and hardship if the applicant’s visa remains cancelled.
The applicant provided a medical report from a psychologist dated 4 January 2024 as evidence that he has been diagnosed with depression and anxiety because of his son’s relocation to Queensland. It was submitted and the Tribunal accepts that if he was unable to remain in Australia, he would suffer significant emotional distress and hardship if he was no longer able to continue to play a physical parental role in his son’s life.
Because of the hardship to be faced by the applicant and his son, as well as his sister and her family members, if the applicant is no longer able to stay in Australia, the Tribunal gives this consideration significant weight against cancelling the visa.
Circumstances in which the ground of cancellation arose, if cancellation is being considered because of the relationship breakdown, whether the relationship has broken down as a result of family violence
The ground for cancellation arose when the applicant ceased to be in a continuing relationship with Ms Bhullar. According to his evidence, it was Ms Bhullar who decided to end the relationship. There is no evidence before the Tribunal that the relationship has broken down because of family violence.
The Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant and are to that extent beyond his control. The Departmental policy inter alia states that ‘as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder’.
For the reasons stated above, the Tribunal gives this consideration some weight against cancelling the visa.
Past and present conduct of the visa holder towards the Department
There is no other information before the Tribunal to suggest that the applicant has been uncooperative with the Department or Departmental staff. The Tribunal gives this consideration some weight against cancelling the visa.
Whether there would be consequential cancellations under s 140
There are no consequential cancellations under s 140.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation, and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The applicant is holding a bridging visa because of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
The Tribunal observes that the applicant’s Subclass 491 visa was cancelled under s 116(1)(a) of the Act because 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. As such, the applicant will not be affected by a risk factor.
The Tribunal is unable to make findings as to whether the applicant will be affected by public interest criterion (PIC) 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.
The Tribunal is mindful that s 48 of the Act prescribes that a non-citizen who does not hold a substantive visa and (relevantly) held a visa which was cancelled under s 116 of the Act may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

The Tribunal gives this consideration some weight against cancelling the visa.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
The Tribunal is satisfied that in the circumstances of this case, cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.
The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.
The Department policy states that, when considering whether to cancel the applicant’s visa, the primary consideration should be the best interests of the child. In addition, the CRC reinforces that the best interests of a child shall be a primary consideration.
The applicant has a nine-year-old son living in Australia with whom he has a very close relationship. The Tribunal accepts that the applicant has been the primary parent for his son for a significant period and has provided emotional and financial support and stability. Regardless of whether the applicant’s son will move back to Victoria in the 2024 school year (as per the verbal agreement between the parties) or he continues to reside with his mother in Queensland, the Tribunal finds that it is in the best interests of the child to have his father present in Australia throughout the remainder of his childhood and into his adolescence. The applicant indicated his readiness to relocate to Queensland to be closer to his son if Ms Bhullar decides not to send their son back to Victoria to attend school and live with the applicant.
Consequently, the Tribunal gives this consideration significant weight against cancelling the visa.
Having had regard to the findings above and the circumstances of the case, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa. The Tribunal finds that not cancelling the applicant’s visa is the correct and preferable decision.
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.
Antonio Dronjic
Member

Attachment A: Document List
·Statement from the representative, Carina Ford, dated 4 January 2024.
·Statement from the PRA, Mr Raminder Singh Bhullar, dated 1 January 2024.
·FCFCOA notice to respondent of application for divorce between Bhullar S and Singh R dated 20 September 2022.
·FCFCOA response to divorce dated 28 November 2022.
·FCFCOA divorce order dated 9 December 2022.
·Statutory declaration signed by Raminder Singh Bhullar and Sheeba Bhullar dated 7 July 2021.
·Letter from MMH Lawyers dated 18 December 2023.
·Photos of PRA and family, undated.
·Text messages between PRA and family, undated.
·Collection of boarding passes dated 24 June 2023, 16 April 2023, 22 January 2023 and 10 July 2023.
·Letter of employment from Guru Arjun Dev Ji Transport Pty Ltd signed by Harpreet Singh, undated.
·Statutory declaration signed by Jaspinder Kaur dated 3 January 2023.
·Letter from Dr Shoaib Munawar dated 24 December 2023.
·Booking confirmation text message dated 2 January 2024.
·Letter from Janis Lee, psychologist, dated 4 January 2024.