Charandeep Singh (Migration)
[2019] AATA 4069
•5 August 2019
Charandeep Singh (Migration) [2019] AATA 4069 (5 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Charandeep Singh
CASE NUMBER: 1830541
HOME AFFAIRS REFERENCE(S): BCC2018/1831940
MEMBER:Jason Pennell
DATE:5 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 5 August 2019 at 4.18pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – fact or circumstance no longer exist – member of family unit – relationship with primary visa holder ceased – consideration of discretion – social stigma attached to being a ‘divorcee’ – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.12
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 16 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).
The delegate cancelled the visa under s.116 (1)(a) of the Act on the basis that the particular fact or circumstance upon which the decision to grant the visa is no longer the case or 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 appeared before the Tribunal on 5 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Navdeep Kumar and Gurjeet Kaur.
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
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?
s.116(1)(a) - Fact or Circumstance for visa grant no longer exists
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.
Pursuant to s.116(1)(a) of the Act, subject to subsections (2) and (3), the Minister may cancel a visa if he or she 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 that no longer exists.
The applicant provided the tribunal a copy of his passport and marriage certificate. Bed on the documents provided by the applicant and on his evidence at the hearing the Tribunal finds that the applicant was born on 17 July 1988[1] in Phagwara, Punjab, India and married to Jyoti Sharam on 11 October 2017.[2] On 5 January 2018 the applicant was granted a Student (temporary) Class TU (Student) (subclass 500) visa for the purpose of being able to accompany and remain in Australia temporarily with the primary visa holder, Jyoti Sharam. The applicant arrived in Australia on or about 18 January 2018.
[1] Applicant’s passport dated 26 April2012; AAT File 1830541 f.12
[2] Applicants marriage certificate registered on 26 October 2017; AAT File 1830541 f.12
The applicant’s dependant Higher Education TU 573 visa was granted on the basis that he met amongst other criteria, the secondary criteria for this visa on the basis that he was a member of the family unit of the primary applicant Jyoti Sharam as prescribed by Regulation 1.12 of the Migration Regulations 1994 (Regulation 1.12).
Regulation 1.12 states as follows
‘1.12 Member of the family unit
(1)For the definition of member of the family unit in subsection 5 (1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i)does not have a spouse or de facto partner; and
(ii) is usually resident in the family head‘s household; and
(iii) is dependent on the family head.
(2) A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse or de facto partner of the applicant; or
(b) a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18.
(2A) A person is a member of the family unit of a holder of a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse or de facto partner of the holder; or
(b) a dependent child of the holder, or of that spouse or de facto partner, who is unmarried and has not turned 18.
(3) In addition to subregulation (1), a person is a member of the family unit of an applicant for a Contributory Parent (Migrant) (Class CA) visa, being an applicant who was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, if: (a) the person was a member of the family unit of the applicant, in accordance with subregulation (1), at the time of application for the Contributory Parent (Temporary) (Class UT) visa; and Federal Register of Legislative Instrum….’
To be a member of the family unit of Jyoti Sharam as prescribed by Regulation 1.12, the applicant needs to continue to be either a spouse or de facto partner of Jyoti Sharam as defined under s.5F and 5CB of the Act respectively.
On 21 April 2018 the department was informed that the applicant is no longer in an ongoing relationship with Jyoti Sharam and therefore no longer a member of Jyoti Sharma’s family unit. As a result, applicant was notified by the department of its intention to consider cancellation on 11 September 2018 (NOICC) and invited the applicant to respond to the NOICC. The applicant, by his response to the NOICC dated 25 September 2018 accepted there are grounds for his visa to be cancelled.
The applicant’s response to the departments NOICC was drafted by his representative and stated as follows
‘Dear Officer
Re: Client name CHARANDEEP SINGH Date of Birth 18 July 1988 cancellation ID C6ZSC7ZBH File Number BCC2018/1831940
Thanks you for allowing us an extension.
Please find attached the following documents
-Offer Letter to Study English.
-Tickets to SydneyIn relation to the notice of intention to consider cancellation of his Visa as per the information and instructions provided by our client, we will like to submit as follows; we understand that section 116(1)(a) of the Act allows power to the delegate to cancel a Visa under section 116(1)(a) if satisfied that any circumstances that permitted the grant of a Visa no longer exist. As per the policy, this ground requires the delegate to be satisfied that the circumstances that enabled the Visa holder to meet one or more of the requirements for a Visa grant no longer exist.
We also believe that the policy also gives the delegate authority when considering cancellation in circumstances where there are genuine reasons and factors to not do so.
Our client got married on October 2017 with your key Sharma after falling in love and asking for the family blessing.
The couple then arrived in Sydney in January 2018 and since no suitable living arrangements in Sydney could be made Mr Singh’s sister who resides in Melbourne organise tickets to come and live with them until such time where they could make arrangements in Sydney before the primary applicant’s course would start.
Once they got to Melbourne according to our client his wife started the being quarrelsome and seemed visibly upset. Our client Mr Singh was confused and did not understand why she was upset and Mrs Sharma demanded that they moved to Sydney straightaway. After a few days Mrs Sharma then pleaded with Mr Singh to go back to India as she felt homesick and felt that she could not say in Australia. Paragraph Mr Singh seeing his wife in a predicament calm her down and told her that he would always be by her side and said that she should live her dream by completing her degree in Australia.
Mrs Sharma advised our client that she would wanted to go to Sydney alone, naturally our client was shocked and convinced her that he would go with her to be with her. Our client claims that day by day her behaviour became rude and was very agitated any time our client was around. Our client claims that his wife was always busy on her mobile for the whole day and roaming outside the home while talking.
Concerned Mr Singh called his mother-in-law to advise her of the situation in predicament he was in, they decided that allowing Mrs Sharma to move the Sydney straightaway was the best thing for her and that she had organised a family friend to come pick her up at the airport. Mr Singh decided that he would allow his wife to go to Sydney alone and would join her in a week.
Mr Singh the called up his childhood friend to organise a room for him and his wife in Sydney so they could move in. Friend then arranged a room for them.
Mr Singh then went Sydney and his wife advised him that she had in fact organised a room for them at her friend’s house and she advised Mr Singh to meet them at the address she had provided. Mr Singh then went to the address provided by his wife with both his luggage and her luggage.
Upon arrival she simply took the luggage and put it in her room and told the relatives to send Mr Singh away and not to let him in as she wanted nothing to do with him. This was very hard on our client as his wife had just told him that she did not want ever to see him again.
Mr Singh pleaded with her and asked her to talk to him outside in private and to work it out. Distraught and shattered he came back to Melbourne to be with his family. However he was determined to fight for his marriage and make his relationship work. He pleaded and begged with her however will she then blocked him on social media. He tried to talk to her however they were unable to convince his wife as well and advised him that she no longer wanted to be with him.
Our client still does not understand what went wrong as she never told him and since the marriage was not an arranged marriage she did not understand what has led to her behaviour and separated with him.
Our client went to India to plead with his in-laws to save his marriage however they simply told them they could not force her daughter to be with someone she did not want to be with
Our client understands that he is not eligible for his feet for this Visa as he does not meet the requirements he is however determined to study English so he has better prospects before he goes back to India.
He cannot go straight away due to the stigma of failed marriage in India but at least add some skill and self-development for he goes back. Having an adequate command of English will allow our client to get jobs in hot hospitality as a waiter or in resorts. Since English is a global language and Australia can provide quality education he has decided to it least developed his English before he goes back and faces his family. He has identified that studying which will increase his chances of getting a job in the future in India as English is very sure sought after in most occupations. It will be a competitive advantage for our client. We sincerely hope that this young man will be given opportunity to undertake his English courses are which he is focused and determined on completing a negative outcome would be disastrous for him and would adversely affect our client
We hope you make a just finding and hopefully make a positive decision in this case.
We believe that the discretionary provisions under section 116 a of the migration act 1958 enables decision-makers to take it the circumstances of a student into account before deciding whether cancellation is warranted we also agree that these provisions provide far greater fairness to student Visa holders whose overall intention is to comply with these conditions
Who like to request you use these powers available to you to decide if these are cancellation is warranted based on the merits of our clients case.
We humbly request that you look at this casing totally to make a justifiable decision.
We have for your reference attached all supporting documents for your reference.
Thank you in anticipation.
Should you require any further information please cut, hesitate to contact us.
Regards.’
Therefore, by his submission to the delegate the applicant conceded that he was no longer a spouse or de-facto partner of Jyoti Sharma defined by s.5F and 5CB of the Act. In addition, the applicant’s evidence to the Tribunal was that he was no longer the spouse or de-facto partner of Jyoti Sharma. As such, the Tribunal finds that the circumstances which allowed the grant of his dependant Higher Education Sector TU573 visa no longer exist. As a result the tribunal finds that the applicant has ceased to be a member of Jyoti Sharm’s family unit as prescribed by Reg 1.12.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116 (1)(a) of the Act 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.
Consideration of discretion
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 purpose of the visa holder’s travel and stay in Australia.
The applicant confirmed to the Tribunal that he had been granted a TU500 visa for the purposes of being able to accompany and remain in Australia temporarily with his wife at the time and primary visa holder, Jyoti Sharma.
The applicant’s evidence was that in India he was working for an automotive parts manufacture as an inspector. His evidence was that prior to coming to Australia he had held the position for 7 years. He said that it was a good job which he enjoyed. The applicant’s evidence was that he travelled to Australia with his wife, Jyoti Sharma because it was her dream to study overseas. His evidence was that he had travelled to Australia to support his wife, but otherwise had no plans as to what he might do when he arrived.
Accordingly the Tribunal places little weight of this matter in the applicant’s favour.
Degree of hardship that may be caused
The department was advised on 21 April 2018 that the applicant was no longer in an ongoing relationship with Jyoti Sharma. This was confirmed the applicant’s response to the departments NOICC dated 25 September 2018 and by his oral evidence to the Tribunal. During the course of his evidence to the Tribunal the applicant confirmed the facts and circumstances detailed in his response to the NOICC. Finally, applicant’s brother in law Mr Navdeep Kumar and his sister Ms Gurjeet Kaur confirmed to the Tribunal that the applicant was no longer in a relationship with Ms Sharma.
As such, the Tribunal finds that the applicant is no longer a member of Jyoti Sharma’s family unit. As such, the applicant has ceased to be a member of Jyoti Sharm’s family unit as prescribed by Reg 1.12 and he no longer satisfies the Higher Education Sector TU573 visa.
The applicant says that he cannot return to Australia because he will suffer social shame as a result of his failed marriage. In addition, he says that he is not educated and that he will not be able to find any employment if he returns to India. He claims that he wants to remain in Australia for the purposes of studying English, so that when he does return he will be able to improve his prospects of employment.
While the Tribunal accepts that the applicant may suffer some social shame as a result of his failed marriage, it does not accept that it represents a reason why he cannot return to India. The applicant evidence was that has already returned on one occasion to meet with his in laws. Therefore, it appears while he may suffer some embarrassment or shame there is no evidence of him being threatened with any harm. The country information confirms that while the divorce rate in India is low[3], it is becoming more common particularly in the more urban area. As such, the Tribunal accepts that there is some social stigma attached to being a ‘divorcee’, however, it notes that such a stigma is generally worse for women than men as it is relatively easier for a man to marry again.[4] [5] As such while the Tribunal does accept the applicant will suffer some social embarrassment and shame, the Tribunal notes the country information that states that such shame or embarrassment is less in urban area and generally less for men as it is easier for them to remarry. Accordingly, the Tribunal places some weight on this matter in the applicant’s favour.
[3] DFAT Report 17 October 2018
[4]Scoop Whoop, India Has The Lowest Divorce Rate In The World, Here’s Why It Isn’t Necessarily A Good Thing’
[5]BBC’ What divorce and separation tell us about modern India’
The applicant says that he wants to stay in Australia to learn English before returning to India. While the Tribunal accepts that the applicant is not proficient in English, during the course of the hearing he did appear to have some command of English. Nevertheless, there are many institutions[6] in the applicant’s home town of Phagwara and throughout India where the applicant can learn English if he desires. Accordingly, the Tribunal does not accept that applicant’s desire to learn English is a reason for him to stay in Australia. As such, the Tribunal places little weight on this matter in the applicant’s favour.
[6] A google search for English language courses in Phagwara initially revealed 20 institutions offering English language courses which included Canadian School of IELTS, Xellent Group Institute, Victoria London School-IELTS Institute in Phegwara, American Institute Phagwara
The applicant has previously shown that he is able to find and maintain employment in India. He has shown himself to be responsible and resourceful having held a responsible position within the automotive parts manufacturing industry. The Tribunal places some weight on the country information which notes that India is one of the fastest growing economies in the world, with an annual GDP growth rate of 6.7 per cent in 2017. India’s GDP was USD 2,611 billion in 2017. Therefore, while the Tribunal accepts that he will initially have some difficulty in gaining employment in India, it finds given his experience and training that he will be able to find employment. Accordingly, the Tribunal does not accept the applicant’s evidence that he will not be able to employment in India. As such the Tribunal places little weight on this matter in the applicant’s favour.
Finally, the applicant says that he has suffered financial hardship as a result of the breakdown of his relationship and as a result will not be able to afford to return to India to re-establish himself. While the Tribunal accepts that he has suffered some financial hardship as a result of the breakdown of his relationship, the Tribunal notes the applicant’s evidence that he has been living with and supported by his sister while living in Melbourne. The applicant’s evidence was that his father was the owner and operator of a property business in India. In addition he said that his mother and older sister were currently in Melbourne on an extended stay (six months) to visit his younger sister and to help with her new baby. There was no evidence of his mother or sister working while they were in Melbourne. It therefore appears that the applicant’s family have the financial means to assist him to travel back to India and held establish himself upon his return. Accordingly, the Tribunal finds that the applicant will not suffer adverse financial hardship upon his return to India. As such, the Tribunal places little weight on this matter in the applicant’s favour.
The extent of compliance with visa conditions
There is no evidence of the applicant having breached any other conditions of his visa. Accordingly, the Tribunal places some weight on this consideration in the applicant’s favour.
Past and present behaviour of the visa holder towards the Department
The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.
Persons in Australia whose visa would be cancelled under s.140.
The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.
Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.
Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.
The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.
Other relevant factors
Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.
Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa
Jason Pennell
Senior Member
by Arushi Kapoor 1 February 2019.
by Soutik Biswas India correspondent 29 September 2016,
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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