Chani (Migration)

[2021] AATA 2086

Chani (Migration) [2021] AATA 2086 (25 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pardeep Singh Chani

CASE NUMBER:  2000806

HOME AFFAIRS REFERENCE(S):          BCC2019/3461462

MEMBER:Joseph Lindsay

DATE:25 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 25 May 2021 at 10:16am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine and continuing relationship – relationship with primary visa holder ceased – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 January 2020 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 attended a hearing by audio with the Tribunal on 25 May 2021 to give evidence and present arguments.

3. 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

4. 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) of the Act. 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?

5. 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.

6. The Tribunal put to the applicant that he had given a copy of the delegate’s decision to the Tribunal and the Tribunal had received written submissions on 24 May 2021. The Tribunal put to the applicant that it appeared that he had been granted the secondary visa on the basis that he was a member of the family unit of the primary visa holder as he was in a genuine and continuing relationship with Ms Jaspreet Kaur. The applicant gave evidence that he was not in a relationship with Ms Jaspreet Kaur.

7. The Tribunal accepts that the applicant is not in a genuine and continuing relationship with Ms Jaspreet Kaur. The Tribunal accepts that the applicant’s visa was granted to him on the basis of a particular fact or circumstance, that is that he was in a genuine and continuing relationship with Ms Jaspreet Kaur. The Tribunal accepts that this particular fact or circumstance, that the applicant was in a genuine and continuing relationship with Ms Jaspreet Kaur, no longer exists.

8. Accordingly, the Tribunal finds that given the applicant has ceased to be either a spouse or a de-facto partner of Ms Jaspreet Kaur, the applicant has ceased to be a member of Ms Jaspreet Kaur’s family unit as prescribed by reg 1.12(2)(a). The Tribunal finds that there are grounds for cancelling the applicant’s visa under s116(1)(a) of the Act because the circumstance which permitted the grant of his visa no longer exists.

9. 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

10. 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’.

    The circumstances in which the ground for cancellation arose

11. The applicant gave evidence that his marriage broke down for reasons outside his control. He said that he had been a good husband and he had loved his ex-spouse but felt as if he had been used. He said that his ex-spouse used him for his money.

12. The Tribunal accepts that these unfortunate circumstances have happened to the applicant, and gives these circumstances some weight against cancelling the visa.

    The purpose of the visa holder’s travel and stay in Australia

13. The applicant said that his purpose in coming to Australia was to support his spouse.

14. The Tribunal accepts that the applicant’s purpose in coming to Australia was to support his spouse and gives this consideration some weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

15. The applicant appears to have abided by his other visa conditions. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

16. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. In response, the applicant indicated that he would be very emotionally disappointed. He said he would have to start again from zero.

17. The Tribunal accepts that the applicant would be very emotionally disappointed that there may be some disappointment caused to the applicant if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

18. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

19. The applicant, of course, does not have, any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

20. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

21. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

22. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

23. The Tribunal places some weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

24. The Tribunal asked the applicant if he feared anything in returning to India. In response he said he had no fears if he went back to India. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

25. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that there are no other matters he wished to discuss. He indicated that he felt he had worked hard but that he had been used and that he should have his visa cancelled because of his relationship breakdown. The Tribunal has some sympathy for the applicant’s circumstances and give this factor some weight.

    Conclusion

26. In balancing the overall circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay
    Member