Chauhan (Migration)

[2021] AATA 2938

Chauhan (Migration) [2021] AATA 2938 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikas Chauhan

CASE NUMBER:  2010247

HOME AFFAIRS REFERENCE(S):          BCC2019/3003383

MEMBER:Kira Raif

DATE:4 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 4 June 2021 at 11:15am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – fact or circumstance no longer exist – member of family unit – relationship with primary visa holder ceased – no evidence of reconciliation – consideration of discretion – purpose of visa not fulfilled – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 15 June 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was granted a Class UC Skilled visa in February 2019. In May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the circumstances which permitted the grant of the visa no longer existed and that there are grounds to cancel the visa under s. 116(1)(a) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 15 June 2020. The applicant seeks review of the delegate’s decision.

3. On 10 May 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his  application but 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 on 9 June 2021. On 3 June 2021 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

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). 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.

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.

   Does the ground for cancellation exist?

6. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant was granted the Skilled visa on the basis of being a spouse and a member of the family unit of his then partner, Neeshu. The primary decision record indicates that the applicant was no longer in a relationship with his partner.

7. In his response to the NOICC the applicant states that he and his partner had been living apart from 2019 and that an application for divorce was made but subsequently withdrawn and the applicant states that they are in the process of reconciling. The applicant submits that divorce is against his culture and religion, and he provided evidence that the divorce application had been withdrawn. The applicant states that if he is divorced, he will be subject to humiliation by the community and will suffer psychological distress. The applicant states that if he leaves Australia, he would lose his partner forever. The applicant also states that his wife took a study loan to study in Australia with the help of his father and if he leaves Australia, he would be unable to repay the debt.

8. The applicant has not presented any further evidence of the relationship with Neeshu to the delegate or to the Tribunal. Importantly, the Tribunal is mindful that considerable time has passed since the applicant’s response to the NOICC and in the Tribunal’s view, if the couple had reconciled, there would be evidence of their ongoing relationship. Such evidence is not before the Tribunal. As the applicant decided not to attend the Tribunal hearing, the Tribunal has not had the opportunity to obtain evidence from him.

9. On the limited evidence before it, the Tribunal is not satisfied that the applicant’s circumstances had changed since the NOICC was issued and in particular, the Tribunal is not satisfied that the applicant and Neeshu had reconciled. The applicant’s evidence to the delegate is that he and Neeshu had been living apart since 2019 and the Tribunal is not satisfied they have reconciled. There is no evidence before the Tribunal that the applicant and Neeshu share a joint household, that they share their finances, represent themselves to others as being in a relationship and that there is a mutual commitment to the relationship as husband and wife to the exclusion of all others. The Tribunal finds, having regard to the applicant’s evidence to the delegate about the breakdown of the relationship and the absence of any evidence to indicate reconciliation, that the applicant is no longer in a spousal or de facto relationship with Neeshu. There is nothing to suggest the applicant would have otherwise met the definition of being a member of her family unit. The Tribunal finds that the applicant is not a member of the family unit of a person who satisfied the primary criteria for visa grant.

10. As noted above, the applicant was granted the visa on the basis of being the spouse and a member of the family unit of Neeshu. The Tribunal has found that this circumstance is no longer in existence. The Tribunal 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. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists.

11. 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’.

    The 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

13. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a defined 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 him to remain with his partner who was the primary visa applicant. However, the Tribunal has found that the relationship is no longer in existence and that the applicant is no longer in a spousal relationship with the primary visa applicant. 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.

    The extent of compliance with visa conditions

14. There is no evidence of any non-compliance with visa conditions.

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

15. in his response to the NOICC the applicant states that he would experience discrimination and deterioration in his mental health because divorce is not acceptable in his society. Although the applicant presented no evidence that this is the case, and the Tribunal is not prepared to accept the applicant’s assertions without independent evidence, the Tribunal is mindful that even if that was true, these consequences would arise from the applicant’s divorce and not from the cancellation of his visa. The divorce is not the consequence of the cancellation but a precursor to it. The applicant submits that his departure from Australia would result in him losing his partner. Again, the Tribunal is of the view that these matters arise because of the nature of the applicant’s relationship with his partner and not because of the cancellation of his visa.

16. The applicant states that he would be unable to repay a loan if he cannot remain in Australia. The Tribunal finds that  evidence problematic. Firstly, the primary decision record indicates that the visa, if it was not cancelled, would have expired in February 2021 so even if it is reinstated, it would not give the applicant the right to remain in Australia and work. Secondly, the applicant has not presented satisfactory evidence of the loan and that it is his liability to repay it. Thirdly, the Tribunal would not consider that the cancellation should be set aside on the basis that the applicant wishes to work in Australia and earn money to repay the loan.

17. Overall, the Tribunal accepts that some hardship would be caused to the applicant by the cancellation of the visa, particularly if it would lead to the applicant’s departure from Australia, and the Tribunal is prepared to accept that this may affect he applicant’s mental state. However, in this case, the Tribunal places greater weight on the fact that the visa was a temporary visa only which would not have allowed the applicant to remain in Australia permanently and also that the visa would have expired, if it had not been cancelled, so that the applicant would have been required to make other arrangements to remain in Australia. The Tribunal acknowledges that as a result of the cancellation, the applicant would have more limited options for future visa applications.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

18. The ground for cancellation arises because the applicant was granted the visa as a secondary applicant, being a member of the family unit and the spouse of the primary visa applicant. The applicant’s relationship with the primary visa applicant had ceased. There is no evidence that the relationship ended because of family violence.

    Past and present behaviour of the visa holder towards the department

19. Nothing adverse is known about the applicant’s behaviour towards the Department although the Tribunal notes the applicant’s evidence in response to the NOICC that he and his partner had been living separately from 2019 and there is no evidence that the applicant had informed the Department about this change in his circumstances.

    Whether there would be consequential cancellations under s.140

20. There are no persons who would be subject to consequential cancellation.

    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

21. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore.

    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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

22. There is no evidence before the Tribunal, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case, that the family unity principles and best interests of any children would be adversely affected by the cancellation of the visa.

    Any other relevant matters

23. The applicant provided to the delegate evidence of the donations he had made and the Tribunal accepts that the applicant has made a contribution to the community.

24. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant was granted the visa as a spouse and a member of the family unit and that he is no longer the spouse of the primary visa applicant, so that the visa was granted on the basis of a circumstance that  is no longer the case. the Tribunal has found   that there are grounds for cancelling the visa. The Tribunal acknowledges that some hardship may be caused to the applicant by the cancellation of the visa and the applicant’s evidence about his poor mental state, although the Tribunal is of the view that at least some of the hardship to which the applicant refers results from the breakdown of his relationship and not from the cancellation itself. There are no consequential cancellations and the cancellation would not breach Australia’s international obligations.

25. The Tribunal has decided to place greater weight on the fact that the applicant is no longer able to fulfil the purpose of his visa because he is no longer in a relationship with the primary visa applicant. It is also relevant, in the Tribunal’s view, that the visa in question would no longer be in effect, even if reinstated, so that it would not permit the applicant to remain in Australia. Should the applicant decide to make any other visa application (and he has not provided evidence of such intention or his ability to do so), he will be able to do in the future, even if such an application may have to be made from overseas and subject to an exclusionary period.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Kira Raif

    Senior Member