Charpentier (Migration)

[2021] AATA 4021

Charpentier (Migration) [2021] AATA 4021 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Claire Rachel Cassandre Charpentier

CASE NUMBER:  2102402

HOME AFFAIRS REFERENCE(S):          BCC2020/2362439

MEMBER:Michelle East

DATE:5 October 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 05 October 2021 at 9:53am

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – applicant was no longer in a de facto relationship with the primary visa holder – relationship with the primary visa holder had ended – compelling need to remain in Australia – applicant is in the process of applying for a partner visa – cancellation may result in emotional hardship for both applicant and her partner –decision under review set aside

LEGISLATION
Migration Act 1958, ss 5CB, 116, 140

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that a circumstance which permitted the grant of the applicant’s visa no longer existed. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant received a Notice of Intention to Consider Cancellation dated 18 January 2021 and her representative provided a comprehensive response on 12 February 2021.

4. The Tribunal reviewed the material made available to the delegate and determined it was able to make a favourable decision on the basis of those materials.  Accordingly, the Tribunal did not consider a hearing to be necessary.

5. 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

6. 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). 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

7. 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.

8. On 4 September 2018 the applicant was granted a Subclass 457 visa on the basis that she met the secondary criteria for the visa because she was a member of the family unit of the primary visa holder.  She was the de-facto partner of the primary visa holder as defined by section 5CB of the Act.

9. The Department was notified on 17 September 2020 by the primary visa holder that he was no longer in a de facto relationship with the applicant.

10. The applicant does not dispute that her relationship with the primary visa holder had ended and she is no longer in a de-facto partner relationship with him.  The applicant and the primary visa holder are permanently separated.

11. For these reasons, 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.

    Consideration of discretion

12. 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’.

13. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  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.

14. 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.

    Purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

15. The applicant arrived in Australia on 11 November 2015 as the holder of a Working holiday visa.  She was granted a visa of the same class on 20 December 2016 and was subsequently granted a subclass 457 visa on 4 September 2018 as a secondary visa holder as the de-facto partner of the primary visa holder.

16. In March 2020 the applicant moved to Ashburton Downs Station in Paraburdoo to work on a remote station.  The applicant is now married to the owner of the station and living and working on the station.  Documents supplied indicate the applicant married her husband in February 2021.

17. The purpose of the applicant’s travel to Australia was on a working holiday visa.  The purpose of the applicant’s travel to Australia has been fulfilled and arguably expired after those visas expired. As noted above she was a secondary visa holder for the subclass 457 visa.

18. Compelling evidence was provided of the applicant’s role on the station which she lives on with her husband.  It is a remote property of significant size that runs approximately ten thousand cattle.  The evidence is that the applicant is heavily involved on a daily basis in the running of the farm.  The submission given to the Department states:

    ‘Claire is engaged in a critical sector – agriculture – in a remote part of Western Australia.  In addition to emotionally supporting her husband, she is required on a practical level to continue the running of Ashburton Downs Station.  She has developed the necessary skills required and due to labour shortages in the Pilbara, it is crucial that she is permitted to continue working in her role’.

19. Both the applicant and her husband gave sworn statutory declarations attesting to the applicant’s work on the station.  Mr Glenn (the husband) stated as follows:

    Claire works alongside me on the station, and now knows all the workings of the station, where all the windmills are, and how to get to them, how to start motors and pumps, how to operate machinery to feed livestock, and a hundred other things.  Very few people stay long enough to learn all this.  It has been quite a number of years, since I could get anyone to stay all year round.  Very few will now stay for a full mustering season, usually wanting to leave after about three months.

    If Claire was not permitted to continue working, it could compromise the safety of workers.  Claire and I are the only two on the station who know the full workings of the station and I often have limited time.  This year I think we are going to have a lot of trouble finding workers, as a lot of the backpackers who were in Australia, are going home, and no new ones arriving.  Normally I would be getting enquiries now, with two or three booked in, but I have not heard from anyone.

20. The Tribunal notes that this declaration was sworn in February 2021 and it is well known that Australia is critically short of labour, particularly in rural and regional areas.

21. Mr Glenn also deposed to the emotional impact of his wife having to leave if her visa remained cancelled with no immediate prospects of her return.

22. The applicant has ceased to be the de-facto partner of the subclass 457 primary visa holder and therefore the purpose of the visa has ceased.

23. However, for the reasons outlined above, the Tribunal is satisfied that there is a compelling need to remain in Australia.

24. The Tribunal finds this weighs slightly in favour of not exercising the discretion to cancel the visa.

    The extent of compliance with visa conditions

25. There is no evidence that was before the delegate or before the Tribunal to suggest that the applicant has breached any of her visa conditions.

26. The Tribunal finds this weighs in favour of not exercising the discretion to cancel the visa.

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

27. The applicant has claimed that significant hardship will be caused to both she and her husband if the visa is cancelled.

28. The applicant is in the process of applying for a partner (subclass 820) visa.  She is currently on a bridging visa A with working rights.  The applicant contends that if her subclass 457 is cancelled, her bridging visa A will also be cancelled and at best she will be able to apply for a bridging visa E most likely without any work rights.

29. The applicant’s husband has deposed that without his wife’s help, continuing at the station would be difficult.

30. The Tribunal observes that the applicant is relatively new to the property and her husband has run the farm for many years before this, often on his own.  The complicating factor at the moment is the situation with Australia’s international borders due to the Covid-19 pandemic and the resulting labour shortages.

31. The applicant’s husband has, however, attested to the deep emotional impact it would have on him if she were to be required to leave the country.

32. The applicant’s representative submitted to the delegate the following:

    Given that she has now lodged a Partner visa application, if her Subclass 457 visa is cancelled, she will be forced to choose between departing Australia during a global health pandemic and returning to France, or electing to remain in Australia with her husband but on a Bridging visa E without work rights for an undefined period of time.

    As there is no guarantee she will  be able to obtain work rights, if Claire’s visa is cancelled Andrew will lose a skilled worker from the station during a time when it is extremely difficult to employ people in the agricultural sector in the regions.

    However, the impact on Andrew personally cannot be underestimated.  Claire is his wife and confidant.  They provide one another with immense emotional and practical support.  When Andrew was recovering from surgery, his wife was by his side aiding in his recovery.  If Claire is not permitted to remain in Australia with her husband, Andrew will lose a major source of support upon which he relies.

33. The submission also discusses the positive impact the applicant has had on maintaining her husband’s relationship with his children from his previous marriage.

34. The Tribunal is unable to determine whether the applicant would have working rights on any bridging visas granted after a possible cancellation.  If she was not able to obtain them any cancellation would have a significant financial impact on the applicant as she would be wholly reliant on her husband.

35. The applicant and her husband state it would not be possible for her to work on the station if she did not have working rights, however, presumably if she was living there she could ‘work’ in an unpaid capacity as a member of the family.

36. The Tribunal is satisfied that cancellation may result in emotional hardship for both she and her partner, the possibility of financial hardship if she has no legal right to work in Australia and earn income and would also cause emotional hardship to her stepchildren.  Furthermore, in the current Covid-19 pandemic, the applicant may face difficulties returning to her home country, France.

37. The Tribunal finds that all these factors weigh in favour of it not exercising its discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose

38. The applicant’s subclass 457 visa was cancelled as a result of her no longer being the de-facto partner of the primary visa holder.

39. The breakdown of the relationship was not due to any instances of non-compliance with her visa.

40. The Tribunal gives this some weight in favour of it not exercising its discretion to cancel the visa.

    Past and present behaviour of the visa holder towards the Department

41. There is no evidence to indicate the applicant has been anything other than cooperative and open in her dealings with the Department.

42. The Tribunal gives this weight in favour of it not exercising its discretion to cancel the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under section 140

43. There are no visa holders whose visas would be consequentially cancelled under section 140 of the Act.

44. The Tribunal finds this factor to be neutral in the exercise of its discretion.

    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

45. The applicant would be subject to mandatory legal consequences upon cancellation of her visa, however, as these are the intended consequences of the legislation the Tribunal gives them a little weight in favour of its discretion to cancel 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

46. 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).

47. When considering the interests of the applicant’s stepchildren, it is possible that Australia may be in breach of its international obligations.

48. The Tribunal gives this factor some weight in favour of it not exercising its discretion to cancel the visa.

    Any other relevant matters

49. The applicant’s representative gave further submissions on the punitive effect of cancelling the visa, the impact of departing during the pandemic and the need for workers in critical sectors such as agriculture in remote areas.

50. It is clear that if the applicant were to return to France, her husband may not be able to accompany her and if he did, he would definitely face significant difficulties in trying to return.  His station, large in size and very remote would not continue to operate successfully without his presence.

51. As noted by the representative, cancellation under section 116(1)(a) of the Act is not intended to be punitive as it does not carry a three-year bar on temporary visas like some other cancellation provisions. In this matter, the applicant’s visa was cancelled because her eligibility ceased due to a relationship breakdown. She is currently on a bridging visa A which gives her working rights no greater than she was entitled to on her Subclass 457. She and her husband have lodged an application for a Subclass 820 partner visa. The Tribunal is simply unable to see the value in cancelling the applicant’s visa in these circumstances.

52. After carefully considering all the circumstances, the Tribunal finds that the evidence overwhelming weighs in favour of it not exercising its discretion to cancel the visa.

53. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

54. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Michelle East
    Member