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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bhullar (Migration)

Details

AGLC: Bhullar (Migration) [2024] AATA 591
Case: [2024] AATA 591
Decision Date: 29 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, held by the applicant. The dispute arose because the applicant's relationship with the primary visa holder, his wife, had ended, meaning he was no longer a member of her family unit. The Tribunal was tasked with determining whether the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(a) of the Migration Act 1958 (Cth) was made out. This provision allows for visa cancellation if the Minister is satisfied that the visa was granted based on a fact or circumstance that no longer exists. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy.

The Tribunal found that the applicant's Subclass 491 visa was granted based on his status as a dependant and member of the family unit of the primary visa holder, Ms Bhullar. Evidence, including a divorce certificate and the applicant's own confirmation of separation, established that the spousal relationship had ceased and the applicant was no longer a member of Ms Bhullar's family unit. Consequently, the Tribunal concluded that the ground for cancellation under s 116(1)(a) was made out. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. While acknowledging policy guidelines, the Tribunal noted it was not bound by them. The Tribunal ultimately set aside the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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’.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.