Chahal (Migration)

[2019] AATA 2299

Chahal (Migration) [2019] AATA 2299 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amrik Singh Chahal

CASE NUMBER:  1828944

HOME AFFAIRS REFERENCE(S):           BCC2018/4066350

MEMBER:Meredith Jackson

DATE:17 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 17 April 2019 at 1:54pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – ceased to be a member of family unit – tribunal accepts parties validly married – visa holder had ceased to be the spouse of the primary visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 48, 116, 140, 375A
Migration Regulations 1994, Schedule 2, rr 1.12, 2.12

CASES
MIMA v Zhang (1999) 84 FCR 258

STATEMENT OF DECISION AND REASONS

Summary

1. This is an application for review of a decision dated 2 October 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is married to Amandeep Kaur (Ms Kaur). His TU 500 visa was granted on the secondary family criteria by reason of him being a member of Ms Kaur’s family unit at the time of the grant. The delegate cancelled the visa on 2 October 2018 under s.116(1)(a) of the Act because as of that date, the applicant had ceased to be a member of Ms Kaur’s family unit. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled.

3.    The applicant appeared before the Tribunal on 6 March 2019 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 by his registered migration agent.

5.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Evidence before the Tribunal

6.    The delegate’s decision record, which the applicant gave the Tribunal in the review, recorded the following:

a)On 6 April 2018 the applicant was granted a Student (subclass 500) visa on the basis of his spousal relationship with Amandeep Kaur, who satisfied the primary criteria in Subdivision 500.2 of the Migration Regulations1994 (the Regulations). The applicant was granted the visa as a dependant applicant on Amandeep Kaur’s Student (subclass 500) visa.

b)The department sent the applicant a notice of intention to cancel his visa on 18 September 2018. The notice recorded that information before the Department indicated the visa holder is no longer in a continuing relationship with Ms Kaur and that the applicant and Ms Kaur no longer live together. It stated that it appeared the visa holder had ceased to be the spouse of the primary visa holder, as defined by Section 5 F of the Act and therefore was no longer a member of the family unit as described by Regulation 1.12 of the Regulations. It stated that as such, it appeared the visa holder no longer meets Regulation 500.311. The notice stated that the delegate could cancel the Applicant’s visa 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.

c)On 25 September 2018 the applicant provided a response to the Department via his registered migration agent, attaching documents including a bank statement in the applicant’s name, with transactions made by Ms Kaur marked, and a photograph of the visa holder’s newborn daughter. The following is part of the applicant’s response:

“He is under a lot of stress and sleepless nights. He has stated that he has not slept properly since the time he left his wife. He was worried as she threatened her (sic) a few times that she will accuse him of domestic violence. He has nothing against his wife as he sincerely feels that she needs help and earnestly requests you to give him time to enable him to find a solution to this problem. He is apprehensive about the future of his daughter as he is not sure if in this current situation his wife can care for a 5-month old baby and is extremely worried for her. It is a grave concern that he has and he would like to be there for his family. He has tried his best to provide for his family until the time he was asked to leave and was worried that his wife will soon accuse him of Domestic Violence.”

d)The delegate cancelled the applicant’s visa on 2 October 2018.

7.    On 3 October 2018, the applicant applied to the Tribunal for a review of the delegate’s decision to cancel his visa. The hearing was set down for 6 March 2019.

8.    On 4 March 2019 the Tribunal received a request to postpone the hearing to allow time to appoint an interpreter. The Tribunal considered the request but did not postpone the hearing.

9.    Prior to the hearing the applicant sent a personal submission to the Tribunal via his migration agent. In that document, the applicant stated, in summary:

a)He came to Australia to support his wife and his family financed his wife’s study;

b)The couple’s daughter Anureet Kaur Chahal was born on 6 April 2018;

c)He is really worried for the wellbeing of his wife and daughter and that the applicant had stated his wife’s relatives were “playing a dirty part” and trying to break the relationship. His wife was in his view suffering from postnatal depression and had rejected his appeals to seek help, and he is temporarily living away from his wife and daughter in the hope that things will improve.

d)He cannot understand the change in his wife’s attitude. She threatens him that she will make sure that he is deported and will make a case of domestic violence, which he fears. His wife’s parents have accused him and threatened him.

e)If he is forced to leave Australia his wife and daughter will not be able to cope without him, for example she will not be able to cope with education costs.

f)He wants to “give this a few months” and is very hopeful things will improve. If he is forced to leave Australia he will not be able to work on his relationship and this will be very detrimental for his daughter.

g)Being forced to go back to India will also affect his ambition, ruin his future and bring shame on his family.

h)The difficulties in his marital life were due to circumstances beyond his control, and arose from his wife’s postnatal depression.

1. His wife’s family have said they have made a case against him under the anti-dowry law in India. He fears he will be arrested when he reaches India and deprived of his future.

j)He is stressed, and not sleeping and fears his life will be at risk in India.

k)If forced to leave Australia, he will face consequences in terms of applying for visas in future;

l)Under the Convention on the Rights of the Child (CRC), Australia is required to ensure that children are not separated from their parents against their will;

m)The applicant feels depressed and maintains his innocence and states that his marriage is not over;

n)A defect in the cancellation decision recorded the grant date of his visa was 6 April 2018, when in fact it was granted on 14 November 2017.

The hearing

1. The Tribunal hearing proceeded on 6 March 2019. The applicant attended the hearing and supplemented his written submissions by way of oral evidence and submissions. The applicant said the following:

a)He did not understand why his visa was cancelled;

b)In about April or March 2018 he and his wife were living together but after that his wife told him to leave. She was in depression and they made a decision together that if he moved away, things might get better after a bit of time;

c)His wife’s behaviour had changed quite a bit. She had sought treatment from a doctor and she was taking medication. He had no relevant supporting evidence of the alleged illness;

d)The baby was born either 6 March or 6 April, he didn’t remember (the applicant later confirmed 6 April). He said in maybe May or June they started to talk about him leaving. This happened after the baby was born, it was a mutual decision, he couldn’t recall who first suggested it. He decided to go away for a while and think about his wife and daughter and their future, while his wife remained in the house they shared in Morayfield;

e)He doesn’t know where his wife and daughter are now. He spoke to his wife in September 2018 but she had said that if he tried to contact her again she would put a domestic violence case against him. He has not seen his child since she was one or two months old, about eight or nine months ago;

f)He wanted a better future for his child, and now he has lost her and her mother, and his mother and father in India have disowned him from all matters including property and if he returns to India, he will have nothing;

g)He used to pay for everything for his wife and child and he did not expect this to happen, she even used his (bank) card. He had not been supporting his wife and child since then, but if his wife talked to him, he would provide for them both.

h)If he returns to India, he will be in danger from his wife’s family and his own; that his mother-in-law will lodge a anti-dowry case against him.  He might already be subject to one and could be arrested at Delhi airport for which there is no bail. There is nothing for him there now. If he were financially strong he might have worked things out, but he is financially weak;

1. Issues in his marriage were coming up when his wife was one and a half months’ pregnant. His wife started to become a bit cranky.

j)He wanted the relationship to continue on. If he went back to India, aside from the dowry issues he would not be able to see the child. He said the child needs a father and if she doesn’t know who her father is, what is the point of life;

k)The applicant had not spoken to his wife about seeing the child;

l)At the time the parties were discussing separation, there had been no violence, it was about taking a break for three to five months;

1. The applicant’s migration agent stated she had been given to understand the applicant’s marital difficulties were based on his dependant status and in relation to timing, it was her understanding that they arose late in the pregnancy and continued after the birth.

Discussion at hearing of certificate issued under s375A of the Act

1. The Tribunal put to the applicant that the department had received information that was relevant to his case. The information was covered by a certificate issued in accordance with the Migration Act. If the certificate is valid the Tribunal had a discretion to describe the information. It was fair that the Tribunal made the applicant aware of the information and gave him an opportunity to comment. The Tribunal gave the applicant a copy of the certificate and asked whether the applicant considered it was a valid certificate. The applicant stated he considered the certificate to be valid. The Tribunal said it would put the information to the applicant, and subject to his comments or response it could be the reason, or part of the reason, to affirm the decision to cancel the visa. The Tribunal said it had not made up its mind on the information and would take into account any comments or response. The Tribunal said the applicant was entitled to seek additional time to comment or respond and if he sought extra time the Tribunal would consider his request.

2. The gist of the information described above was put: that the applicant left the house because he was upset the baby was a girl not a boy; and that he or his family made threats of violence; and the applicant had indicated no marital reconciliation was possible. The Tribunal said the relevance of the information is that it calls into question the applicant’s reasons for leaving the house and whether he had initiated the decision to leave.

3. The Tribunal said it had considered the certificate and considered it to be valid and the information to be relevant. The applicant said he wished to comment immediately.

4. The applicant said:

a)He was an educated man, he did not believe in such things (about girls and boys). This was just an issue his wife had created to have his visa cancelled;

b)In relation to the alleged threats of violence, he asked why he would make a threat. He could have gone to court when his visa was cancelled but he didn’t because he wanted his visa back. No threats had been made by him or his family, how could they have, she was not talking to his mother and father on the phone;

c)He did not initiate the separation. He couldn’t remember exactly how it began, but the two were sitting in the room together and talked the issues through and this went on until September.

1. The Tribunal said it might have a concern about the applicant not remembering who started a conversation of such importance. The applicant said his wife first raised it, and said he might go away while his mother-in-law was there and come back when she was gone.

2. The Tribunal asked if the applicant had understood the information covered by the certificate and why it was relevant to the Tribunal’s decision. The applicant said he didn’t really understand the certificate. The Tribunal again outlined the role of the certificate to the applicant and the agent. The applicant said he understood. The applicant’s migration agent clarified with the Tribunal the role of the certificate and stated she believed it was valid.

3. The applicant then stated this was the first he had heard of the issues regarding the baby being a girl. He said a baby was a baby, he loved the child, he is an educated man and did not think like that, it was possible the mother had brought this up in order to have his visa cancelled.

4. The Tribunal said it had not made up its mind about the information.

5. The applicant made a summary statement, in which he said he would abide by the visa decision. He said that he respected women’s rights, but he feared his wife was using women’s rights to do something illegal. She had not asked for a divorce and she would do so if she wanted to end the marriage. She was misusing the law. He had lost everything, his life was ruined, his family had disowned him, there may be a case in India against him and he feared arrest. He was stressed and taking medication. He just wanted his relationship back.

Does the ground for cancellation exist?

1. Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that section 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. Under that sub-section, a visa may be cancelled if the Minister or the Tribunal is satisfied that the circumstances which permitted the grant of the visa no longer exist. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]).

2. The applicant’s visa was granted on the grounds that he was a member of Ms Kaur’s family unit and therefore met the criteria set out in r. 1.12 of the Migration Regulations 1994 (Regulations). Relevantly, r.1.12(2)(a) provides that a person is a member of another’s family unit within the meaning of s. 5(1) of the Act if the person is the other’s spouse or de-facto partner. Section 5F(1) of the Act provides that a person is the spouse of another if both are in a married relationship. Section 5F(2) provides that the two people will be in a married relationship if the marriage is valid, they have a mutual commitment to a shared life as a married couple, the relationship between them is genuine and continuing, and they live together (or do not live separately on a permanent basis). All of those characteristics of the relationship must exist for the definition of a spouse under s. 5F to be satisfied.

3. The Tribunal has carefully considered the applicant’s submissions and the circumstances of the parties as indicated in the applicant’s evidence and on the papers before it, and finds that the characteristics of the relationship do not satisfy the requirements of s.5F. The Tribunal accepts that the parties are validly married, but is not satisfied that: they have a mutual commitment to a shared life as a married couple; that the relationship between them is genuine and continuing; and that they live together and not separately and apart on a permanent basis. The Tribunal has particularly considered whether or not the parties live separately and apart on a permanent basis given the applicant’s expressed hopes for a reconciliation. The Tribunal notes his evidence that the parties agreed to separate in mid-2018 and that since that time, they have not lived at the same address in the manner envisaged by the Act. The Tribunal has considered the applicant claims he is hopeful of reconciling the relationship, and that his wife has not asked for a divorce, but notes his submission that when they spoke in September 2018, his wife told him he must remain away from her or she will lodge a domestic violence complaint against him. The applicant has stated to the Tribunal that he has not physically seen his wife and child since mid-2018 and is now not certain of their whereabouts. For the Tribunal, the parties’ current circumstances sufficiently indicate that there is little likelihood of the relationship being reinstated. As the characteristics of the relationship do not satisfy the requirements of s.5F, the Tribunal finds the applicant  does not meet the r.1.12(2)(a) and is not a member of Ms Kaur’s family unit at the time of this decision.

4. The applicant’s visa was granted on the secondary family criteria by reason of the applicant being a member of Ms Kaur’s family unit at the time of the grant, Ms Kaur having satisfied the primary criteria in Subdivision 500.2 of the Regulations. Given that the Tribunal is satisfied the applicant is no longer a member of Ms Kaur’s family unit as defined, 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.

The discretion

1. The Act and the Regulations do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

The purpose of the applicant’s travel to and stay in Australia

1. The applicant was granted his Student visa on 14 November 2017 on the basis of being a member of the family unit of Ms Kaur. He submits the purpose of his travel to and stay in Australia as a student dependent was to be with his wife and to support her.

2. Although the applicant is still married to Ms Kaur in that they are yet to divorce, his relationship with her does not currently constitute one of a shared commitment as husband and wife. The parties are separated, with the child remaining with Ms Kaur. The parties do not meet the requirements of s.5F of the Act, as the Tribunal concludes in paragraphs 23 and 24, above. The purpose of the applicant’s continued stay in Australia under the secondary TU500 visa has for now at least ceased to exist.

1. The applicant argues that the parties now have an infant daughter who will be deprived of her father if he is forced to return to India. He believes the marriage needs time and he holds out hope that his separation from Ms Kaur and his daughter will be temporary. As described earlier in these reasons, there is no convincing evidence before the Tribunal that the relationship will be reinstated as he wishes. There is no information that indicates Ms Kaur currently reciprocates the applicant’s will to reconcile. According to the applicant, Ms Kaur and he do not see each other and he alleges that the last time they spoke, in September 2018, Ms Kaur had said that if he tried to contact her again she would “put a domestic violence case” against him. The applicant has not seen the child for more than eight months, and despite his predictions that the mother will not cope in his absence, Ms Kaur does not appear to be looking to revive the relationship. In these circumstances, the applicant’s stated wish, that he be given time to reconcile with Ms Kaur, does not, of itself, sufficiently preserve the purpose of his continued stay in Australia on the secondary Student visa and the Tribunal affords this consideration limited weight.

The circumstances in which the ground for cancellation arose

1. The delegate cancelled the applicant’s visa because at the time of cancellation on 2 October 2018, his relationship with Ms Kaur as her husband was not continuing. The parties were not living together as husband and wife.

2. The Tribunal has considered anew the circumstances in which the cancellation occurred, particularly the applicant’s claims the difficulties experienced in his marriage arose because of circumstances beyond his control. They rely heavily on his assumption that his wife suffered from postnatal depression after the birth of the baby but also on his other suggestion, again about her mental health, that she began to be “a bit cranky” when she was newly pregnant. He also submits that his wife’s family played a big role. He makes no submission that he played any role himself in the breakdown, or that his wife may simply have wanted to end the relationship, a possibility that events since the separation appear to support. The Tribunal notes the applicant’s statements about the couple having mutually resolved to live apart bear some inconsistencies. This has the effect of undermining the credibility of his claim that he is a victim of circumstances that are not of his own making. The applicant claimed at hearing that the parties’ marital difficulties began when Ms Kaur was “one and half months pregnant”. Yet in his written submissions he states that the troubles began shortly after the birth of his baby daughter and were due to his wife’s alleged illness (the latter point his migration agent stated was also her understanding of the cause and timing of the breakdown). The applicant claims enormous distress at losing his daughter, and the Tribunal considers this believable, but notes he could not, initially, recall the month of her birth. He has not seen his daughter since she was a newborn and does not know where she lives. He is not offering financial support to his child or to his wife because, he claims, he is not being asked to, and he also says he does not see his wife, because, he says, she has threatened him with a domestic violence case. The Tribunal accepts, as his written evidence claims, the applicant is subject to severe stress. However his recounting of the reasons for the relationship breakdown are inconsistent. He claims that his wife’s alleged illness caused it, but also states that members of her family were behind the breakdown.  He offers no insights into his own behaviour, and by his unwillingness to provide a detailed accounting of what sort of events led to the decision to separate, who initiated discussions, on what basis, and what part he, as one half of the relationship, played in the breakdown, he leaves the Tribunal with considerable doubt as to his credibility.

3. The applicant’s response to the information covered under the s.375A certificate, that he wanted a boy not a girl child, was that this notion was inconsistent with his values as an educated man. He stated he is a supporter of women’s rights, yet states that his wife is abusing women’s rights to eject him from her life. He offers no convincing response to the information that he had said at the time of the breakdown that no reconciliation was possible; and no response to the suggestion that it was his idea to leave. Further, despite his statements that the separation decision was mutual, at one stage in the hearing he said it was his wife’s idea they take a break.

4. The Tribunal is not in a position to determine with any certainty whether the circumstances in which the cancellation of the applicant’s visa arose were beyond his control.

5. The Tribunal places limited weight in the applicant’s favour on this consideration.

Extent of compliance with visa conditions and co-operation with the department

1. On the evidence before the Tribunal, the applicant has not breached any condition of his visa. Further, he has co-operated with the department. For example, he did not ignore the notice of intention to cancel his visa. He responded to the notice promptly.  This consideration weighs in the applicant’s favour.

Hardship caused by the cancellation to the applicant and his family

1. The Tribunal accepts the applicant is suffering emotional difficulties. He broke down in the hearing on several occasions and appeared genuinely remorseful about his circumstances. In his written and oral submissions, the applicant counts as hardships the loss of his wife and daughter and his child’s loss of access to her natural family, the support of his own family in India, the support of his wife’s family, his opportunities to in future apply for further visas, his economic and career prospects in India, and his freedom and security in India if he has to leave Australia and return home.

2. To address the first claimed instance of hardship, it is clear to the Tribunal that the loss of his wife and daughter is a source of sorrow for the applicant. It accepts equally that the child may lose, for a time, access to both natural parents. However the Tribunal is less persuaded by the applicant’s complaint that such potential loss invokes Australia’s obligations to the Convention on the Rights of the Child (CRC). The applicant argues in his submission that Australia must ensure that children are not separated from their parents against their will, except in certain circumstances (not relevant in his case). The Tribunal notes the child is 12 months old and is in the custody of her natural mother, who is a temporary entrant to Australia, and is subject to a relationship breakdown involving her parents. This is a common set of circumstances in families experiencing marital difficulties. The Tribunal accepts that returning to India will create emotional hardship for the applicant for some time. However, the Tribunal has no evidence before it to suggest that the child is being separated from her parents in a manner inconsistent with Australia’s international obligations.

3. In relation to the second claimed instance of hardship, the loss of the applicant’s own family’s support, the Tribunal has little information on which to derive any conclusion. The applicant’s response in the hearing was that his family had disowned him and divested him of all financial assets including property. This was not fully explained despite the Tribunal’s attempt to establish why his family would take such action. The applicant did not directly respond to the question. His only response was that he used to pay for things for his family and will not be able to do so in future. The Tribunal notes the purpose of the Student visa program is not to enable temporary visa holders to provide economically for family members on or offshore. A reference in the applicant’s written submission that his family fear the outcome of an anti-dowry action lodged against him in India, is plausible, but given this is the only information before it on the issue, the Tribunal makes no causal link between the visa cancellation and the estrangement of his family in India.

4. In relation to the third claimed instance, the loss of support of his wife’s family, the Tribunal has little information before it but accepts this is a common outcome of marital breakdowns in many cultures. The applicant submits that the family have threatened him with “dire consequences” and that his wife’s parents say that they are waiting for him to get back to India where they have made a dowry case against him. The Tribunal has little information before it on any dowry action brought against him or threatened to be brought, and makes no finding.

5. The applicant’s fourth claim is that, if he is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and may also be barred for applying for Australian temporary visas for three years. Further, that he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia. The applicant is currently on a Bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 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, which does not include Student visas. Consequently, this limits the visa applications the applicant can make whilst onshore. The Tribunal notes the applicant he stated in the hearing he planned to comply with the cancellation decision.

6. The applicant’s fifth and sixth claims are that his economic and career prospects in India, and his freedom and security, will be ruined by the circumstances of his visa cancellation and return to India in the aftermath of the breakdown of his relationship. The Tribunal accepts the applicant’s claim that he is an educated person whose life will be altered by such circumstances. The Tribunal accepts his claim that the breakdown and the visa cancellation have potential to also bring shame on his family. Further, the Tribunal has considered the claim that a dowry case that may have been lodged by his wife’s family will confront him on his return will deepen his hardships. The Tribunal has considered this, but concludes that as a young, educated man, who has been absent from India for less than two years, he is in a position to rebuild in a country with a growing demand for skilled workers with above-average levels of education and English, which, from time to time in the hearing, the applicant demonstrated competency in. The Tribunal considers that any hardship the applicant might experience in the initial period after his return does not, on its own, provide justification for setting aside the delegate’s decision. However, the Tribunal has taken account of the matter in reaching its conclusions.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s Intervention

1. This consideration is dealt with in paragraph 39, above.

Whether there are others whose visas would or may be cancelled under s. 140

1. This consideration does not apply. The applicant is a secondary visa holder and the primary and other secondary visa holders’ authority to remain in Australia is not affected by the cancellation decision.

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

1. In considering whether to exercise its discretion to cancel the applicant’s visa, 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). This consideration is dealt with in paragraph 36, above. No claim was made and no information is before the Tribunal that a cancellation outcome would result in a breach of any of Australia’s international obligations. The applicant has indicated that an action may have been brought against him by his wife’s family under India’s anti-dowry legislation, and that he fears he may be arrested as he steps off the plane in India. However there is no evidence before the Tribunal that such an action has been brought and the Tribunal affords this consideration little weight in the applicant’s favour.

Conclusion

1. The applicant claims the circumstances leading up to the cancellation of his visa were beyond his control. The Tribunal is prepared to accept that Ms Kaur is likely to bear some share of the blame for her relationship breakdown with the applicant and that the applicant may be unable to objectively assess his own role in the breakdown which resulted in the cancellation of his visa. The applicant claims he is keen to reconcile the relationship. The Tribunal however does not have before it information that Ms Kaur reciprocates, and places limited weight on these considerations in the applicant’s favour.

2. The Tribunal has considered the hardship the applicant might suffer if he were required to return to India without his family in the wake of a cancellation but considers is circumstances are similar to those suffered by many as an outcome of a relationship breakdown. The Tribunal places limited weight in the applicant’s favour in this regard.

3. The Tribunal has considered the applicant’s cooperation with the department and his lack of breach of visa conditions and places some weight on this consideration in the applicant’s favour.

4. The Tribunal places no weight on the remaining considerations, as described earlier in these reasons.

5. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision.

6. The Tribunal has insufficient evidence before it that the applicant is a member of Ms Kaur’s family unit at the time of this decision.  Any reconciliation with his estranged wife and reunion with his infant daughter would rely on the applicant coming to an agreement with his wife to reinstate the relationship. Yet while the applicant is hopeful of this, his circumstances, as he describes them, particularly that his wife told him in their last conversation in September 2018 that he must remain away from her or she will lodge a domestic violence complaint against him, and the fact that he has not physically seen her or the child since mid-2018, and does not know her or his wife’s whereabouts, convince the Tribunal there is little likelihood of the relationship being reinstated in the foreseeable future. The relationship would need to be fully restored consistent with the definition in Section 5F of the Act and as described by Regulation 1.12 of the Regulations to be considered viable. The Tribunal notes that currently, the applicant lacks even basic lines of communication with his spouse and his last discussion with her, in September 2018, resulted in what he submits were hostility and threats.

7. The remaining reasons cited by the applicant for the reinstatement of his visa are not consistent with the purpose of his original travel to Australia, the purpose for which the visa was granted, or the purpose of the Student visa scheme generally. He came to Australia as a member of the family unit of a person holding a Student visa. He is no longer a member of that family unit as defined.

8. Having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s Student visa.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Meredith Jackson
Member