Chhantyal (Migration)

[2022] AATA 3654

Chhantyal (Migration) [2022] AATA 3654 (6 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sangita Chhantyal

REPRESENTATIVE:  Mrs Simrita Ranjitkar (MARN: 1798972)

CASE NUMBER:  2207658

HOME AFFAIRS REFERENCE(S):          BCC2021/1859657

MEMBER:Alan McMurran

DATE:6 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 06 September 2022 at 5:07pm

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – applicant was no longer a member of the family unit or in an ongoing relationship with the primary visa holder – the marriage no longer exists –no further compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359. 360
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application lodged 25 May 2022 for review of a decision dated 20 May 2022 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 (Cth) (the Act).

2. The applicant, Miss Sangita Chhantyal, is a 25-year-old citizen of Nepal. The applicant was the secondary visa holder for the grant of a Temporary Graduate subclass 485 visa on 1 July 2020, granted on the basis the applicant had made a combined application with the primary visa holder, Subash Nagarkoti, as a member of the family unit of the primary visa holder.

3. The delegate cancelled the visa under s 116(1)(a) on the basis that the applicant was no longer a member of the family unit or in an ongoing relationship with the primary visa holder, Subash Nagarkoti. The delegate found that the decision to grant the visa was based wholly or partly on a particular fact or circumstance that no longer exists. The delegate went on to find that this was not a case where the discretion as to whether the visa should be cancelled should be exercised in favour of the applicant. The issue afresh for the Tribunal in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

4. The applicant and the primary visa holder were married in the Nepal on 30 April 2016. The applicant first arrived in Australia on a student visa TU-500 on 23 February 2018, and which visa ceased on 15 March 2020. The applicant was granted a Temporary Graduate subclass 485 visa on 1 July 2020, cancelled on 20 May 2022. The applicant has remained in Australia on a bridging visa A granted 18 May 2022 and then on a bridging visa E granted 26 July 2022. On 18 May 2022, the applicant lodged an application for a student visa currently before the Department for consideration.

5. According to the Department information provided, the applicant has completed High School in Nepal, but has no other qualifications. The applicant was living in Sydney on arrival with her husband, the primary visa holder, but is now living in Bundaberg in Queensland, working as a casual fruit picker.

6. On 13 October 2021, the Department was advised by the primary visa holder in writing by Form 1022 of a Notification of changes in circumstances, receipted by the Department of Home Affairs on that date. The Form notes that the change in circumstances as being now “divorced”. The notification attached a copy of a divorce certificate dated 13 August 2021, apparently completed, and registered by the Kathmandu District Court on 2 August 2021. The court record reads that the application was commenced by the applicant as the plaintiff and that both parties had consented to the divorce.

   Department process

7. On 11 April 2022, the Department informed the applicant by Notice of an intention to consider cancellation of her visa under section 116 of the Act. Shortly afterwards, the applicant acknowledged receipt of the information, but explained that due to her level of English understanding, she would need assistance. The Department responded on 6 May 2022 recommending the applicant seek assistance from a migration agent or legal practitioner or from the Translating and Interpreting Service, which details were provided. The applicant was provided an additional 5 days for her to respond to the notice.

8. On 11 May 2022, a migration agent, Simrita Ranjitkar, responded on behalf of the applicant to the Department attaching a letter of the same date making submissions. The Tribunal refers to those submissions below. On 20 May 2022, the Department notified the representative of its decision to cancel the visa under section 116(1)(a) of the Act.

   Tribunal process

9. On 25 May 2022, the applicant brought these proceedings in the Tribunal for review, again represented by the same migration agent. On 16 August 2022, the Tribunal sent the applicant a letter under section 359 of the Act, requesting information. On 24 August 2022, the Tribunal invited the applicant under section 360 of the Act to a hearing on 13 October 2022.

10. The Tribunal letter required the applicant to respond by 30 August 2022 and informed her that if she did not do so, and no extension of time was sought to provide information, the applicant would lose any entitlement she might otherwise have had to appear before the Tribunal to give evidence and present arguments. The applicant did not respond and no extension of time for a response was sought or granted. The Tribunal did not hear either from the representative or from the applicant or any other person on her behalf.

11. As the applicant did not respond, section 360(2)(c) of the Act applies, which provides that where the applicant has not provided information when invited to do so, in accordance with section 359C(1)(b), the Tribunal may make a decision on the review without taking any further action to obtain the information. Section 360(3) further provides that where section 359C is enlivened and applies, the applicant is not entitled to appear before the Tribunal. As a result, the Tribunal has cancelled the hearing on 13 October 2022 and is proceeding to determine this review on the information presently available.

12. 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

13. 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). 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?

14. 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. The relevant fact or circumstance in this instance is that the applicant’s marriage has now ended. The applicant has explained the background to the applicant applying for divorce, in her submission.

15. The applicant’s submission appears in a letter from her representative to the Department made 11 May 2022. The submission states in full:

    “11 May 2022

    Response to the Notice of Intention to Consider Cancellation relating to her Temporary Graduate (Class VC) Subclass 485 visa under section 116.

    We act for Ms Sangita Chhantyal in the above matter. [Attachment 1-Signed Form 956]

    Background

    Sangita is a citizen of Nepal. She is currently in Australia on Temporary Graduate (Class VC) Subclass 485 visa as a dependent of her spouse, the primary visa holder Mr. Subash NAGARKOTI (born 28 August 1988).The visa was subsequently granted on 1 July 2020.

    Ground of considering cancellation is set out in NOICC as following the grant of her visa, the Department has been advised that her relationship with her husband Subash Nagarkoti has broken down and they have subsequently divorced. Given that she is no longer in an ongoing relationship with Subash Nagarkoti the primary visa holder, she is no longer a member of his family unit. As a result, it appears that the decision to grant her Temporary Graduate visa was based wholly on a particular fact or circumstance that no longer exists, specifically your spousal relationship. As this particular fact or circumstance no longer exists, her Temporary Graduate visa is liable for cancellation consideration under s116(1)(a) of the Act.

    Matters to be taken into consideration

    Sangita accompanied her husband Subash to Australia on a student visa. She was granted Temporary Graduate Subclass 485 on 01 July 2020. Her circumstances have been very peculiar since the beginning of her arrival to Australia. As she hails from Nepal, she holds a very strong cultural and religious morals pertaining to the basic responsibilities and limitations she holds as a partner. Since the beginning, she was in Australia to support her husband in every way she could. As you are aware that her level of understanding of the English language is very limited, however she survived in an English speaking country just to support her husband. Kindly consider her peculiar circumstances as explained below:

    1.The circumstances in which the ground for cancellation arose: Sangita is not denying the fact that her relationship with her husband was starting to deteriorate with some disagreements and quarrels that happen in most of the married relationships. Her husband was abusing her verbally, not treating her well, there was untrust in the relationship, she was mentally stressed and harassed. But she is totally unaware of the Divorce proceedings because of her limited level of understanding the legal procedures. She said her husband told that she can stay on the same visa and sort her affairs in Australia and she will get more time to make her parents understand her situation. Then her husband notified the department of relationship breakdown and divorce. She still cannot come to the terms that her divorce happened, she is in the state of pure denial and living with no psychological support.

    2.Present circumstances of the visa holder: Presently Sangita is living by herself. She is trying to meet her basic needs by working in a fruit picking company as a laborer because of her limited understanding of English Language. During this pandemic where there is shortage of employers she is supporting her employer. Her presence in her work place is very important for the company.

    3.Her compliance with her visa conditions: She has always complied with her visa conditions for current subclass 485 and previous student subclass 500 visas. There is none known to the department (no non-compliance to visa conditions noted in NOICC).

    4.Degree of hardship which may be caused to Sangita and her family if her visa is canceled:If her visa is canceled and she has to go back to Nepal there are a lot of challenges she has to face. According to Sangita, after divorce Nepalese society will treat her like she did the biggest crime ever because divorce is considered the end of life for most of the women in Nepal. It’s a horrible experience to go through. Sangita stated that she has lost her self-confidence after divorce and will go into depression. Sangita said there is a social stigma for divorced women in Nepal. Neighbors and relatives are not kind to the divorced woman. They make up all sorts of gossip about the character of the woman. She is presumed to be guilty of breaking her marriage. In such cases, it is sheer humiliation for the woman. She has no chance to survive if she goes back to Nepal. She is looking for options to upgrade her academics by doing some English course and then some accountancy certificate so that when she goes back to Nepal she has something in hand to start a new life.

    5. Mandatory legal consequences: Upon cancellation, Sangita would become an unlawful non- citizen and is liable to be detained under section 189 of the Act, and liable for removal under section 198 of the Act.

    Conclusion

    We urge you to give significant weight to the above explained factors and not to exercise the discretion to cancel Sangita’s visa and give to her chance Please contact us if you require any further information or documentation.

    Yours sincerely,

    Simrita Ranjitkar Registered Migration Agent 1798972

    List of Attachments Attachment 1-Signed Form 956 Attachment 2-Sangita’s Passport Attachment 3-Sangita’s Payslip Attachment 4-Divorce Papers in Nepalese.(Please note we are waiting on English translated divorce papers from Nepal, however the translator services are closed due to elections, it will take 2-3 days, we will forward you once received). Her situation in divorce letter is clearly written.”

16. It is not contested before the Tribunal that the decision to grant a visa to the applicant was based wholly or partly on a particular fact or circumstance, namely her marriage, and that the relevant fact or circumstance, namely the marriage, is no longer the case and the marriage no longer exists.

17. The applicant has provided evidence to the Department of the divorce order made in the Kathmandu District Court on 2 August 2021. This document was also provided to the Department by her former husband, Subash Nagarkoti, when notifying the Department of the change of circumstance.

18. The Tribunal accepts and finds accordingly that the applicant’s marriage has now ended. The Tribunal further finds that this was the relevant fact or circumstance for the decision to grant the visa, and which fact or circumstance no longer exists.

19. 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

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of its 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 information available from the Department and Tribunal files, available court decisions, and the submissions from the applicant’s representative.

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

21. The applicant came to Australia in February 2018, shortly after her marriage to the primary visa holder, and for the purpose of supporting her husband while he studied in Australia. As stated in her submission, her purpose was to support her husband in every way she could, in accordance with Nepalese custom. The applicant expresses no other purpose. The applicant was a secondary visa holder to her husband, who was the primary visa applicant.

22. Since the breakdown of her marriage and subsequent divorce, the applicant has not stated any further compelling need to remain in Australia. She states in her submission that she would like to embark on English studies and subsequently, accountancy studies, to enable her to be qualified on her return to Nepal.

23. There is no evidence of a proposed English course submitted to the Tribunal, or on the available information, which might demonstrate when, where or how such learning is to be undertaken. The only information available from the Department is to the effect the applicant has recently sought the grant of a student visa for herself. No details concerning that application or the visa, however, have been submitted by the applicant for the Tribunal to consider, or are otherwise available at the time of decision. The Tribunal places little weight on this consideration in terms of the cancellation of the visa and does not find that the reason submitted for her to embark on studies of English in Australia, is sufficiently compelling.

    Compliance with visa conditions

24. There is no evidence before the Tribunal of any non-compliance by the applicant with any prior or current visa conditions. The Tribunal places little weight upon this consideration.

    A degree of hardship that may be caused

25. The Tribunal acknowledges the applicant’s submissions as to her personal state of mind following the marriage breakdown. It seems on the available information however that the divorce application was initiated by the applicant herself in the Kathmandu District Court. It is logical that following the breakdown of the relationship that the applicant will experience some emotional trauma. The divorce however was ordered more than 12 months ago while the applicant was still resident in Australia and she has been living separately and apart from her former husband for over a year. The available information from departmental files is that the former husband has now re-partnered and is a secondary applicant for another visa. The applicant herself has relocated to Queensland where she has sought temporary work.

26. During the course of these proceedings, the applicant applied for a fee waiver to the Tribunal. That request was refused based on the applicant’s financial history. It discloses that the applicant has received significant deposits in her bank account, which in the period of one month from 24 April 2022 to 23 May 2022 totalled $24,483. The detail as to the source of these funds and the purpose was not explained with the fee waiver request, and hence the request was refused. It seems from this very limited information, that the applicant is in receipt of financial support while in Australia, subsequent to the marriage breakdown and is not presently in financial hardship as a consequence.

27. The Tribunal can accept that in Nepal there is a certain social stigma for women which is attached to divorce. DFAT notes in its country information on Nepal dated 1 March 2019, that NGOs for women report “it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive, and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims.” The report goes on further to add: “women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.”

28. The applicant’s submissions as to her concerns in this regard are of a generalised nature, and no specific detail or particulars of her personal situation have been provided. It is not possible to conclude in these proceedings to what extent the applicant may be affected and suffer particular hardships as a consequence of being divorced, other than to generalise by acknowledging such hardships may exist. The Tribunal places some little weight upon this consideration.

    The circumstances in which ground of cancellation arose

29. The Tribunal has available only the information as reported in the Kathmandu District Court order. It refers to the marriage breakdown arising from differences between the applicant and her husband resulting in arguments, quarrels and a “negative change” in ‘habits’ between the parties following their marriage. This resulted in the applicant leaving the marriage to live separately. This occurred while the parties were living in Australia. Neither party in the proceedings petitioned for “property and alimony”. There was no child of the marriage. The husband, for his part disputed there was anything other than a “normal dispute” between them as between husbands and wives, and that the marriage was otherwise a “harmonious relation”. There is no allegation of domestic violence by either party, although in her submission, the representative refers to the applicant having been the subject of verbal abuse.

1. This is the only information available to the Tribunal as to the background behind the change in circumstance, being the divorce, and which led to the ground of cancellation of the visa. These were circumstances which on the available information do not appear to have arisen as a consequence of something beyond the applicant’s control. On the contrary, it was the applicant who initiated the divorce process for the reasons expressed in her submission and her dissatisfaction with the marriage.

2. The Tribunal places little weight upon this consideration as to whether the visa should be cancelled.

   Past and present behaviour of the visa holder towards the department

3. There is no information before the Tribunal to indicate there is anything in the past or present behaviour of the applicant which might have a bearing on the exercise of discretion and whether the visa should be cancelled. Accordingly, the Tribunal places little weight upon this consideration.

   Consequential cancellations under s 140

4. On the available information, there is no other dependent visa holder, other than the applicant herself, and the Tribunal is satisfied that a consequential cancellation under section 140 will not apply.

   Mandatory legal consequences

5. The Tribunal is satisfied that there are no mandatory legal consequences such as the applicant being liable to detention or removal as a consequence of cancellation, unless the applicant failed to comply with departure requirements and conditions, arranged or agreed with the Department. The applicant is currently on a valid Bridging visa and as indicated above, has made a further application for a student visa which, subject to the Department’s response, remains under consideration. The Tribunal gives little weight to this consideration.

6. International obligations, including non-refoulement, family unity and best interests of the children as a primary consideration

7. The Tribunal finds there is no evidence before it that there is a question of any international obligation including non-refoulement, family unity, or the interest of a child as a primary consideration arising in this case. The Tribunal gives no weight to this consideration.

   Any other relevant matters

8. On the available information, there is no evidence the applicant has strong family, business, or other ties in Australia. It is submitted on her behalf that she is working currently in a temporary role as a fruit picking labourer in Queensland. This is submitted as being a reason for the exercise of discretion and explained as the applicant meeting her ‘basic needs’ and because there is a current labour shortage for such work. Unfortunately however, no details have been provided to demonstrate the nature of the relationship and the employment, the income available to the applicant, and the terms and conditions of the work being performed. The applicant has provided a copy of a payslip dated 28 April 2022 from JNJ Trading QLD Pty Ltd showing gross pay for a one-week period of $432 and for her classification as at April 2022 as “Horticulture Worker level I”. Otherwise, the terms of her current employment and financial circumstances from that employment, including current living expenses are unknown at the time of decision. At the time of the fee waiver request to the Tribunal in June 2022, and according to the Tribunal response letter of 7 July 2022, the applicant had declared that she was then unemployed.

9. No other relevant matters have been submitted to the Tribunal for consideration and generally, there are no other matters to which the Tribunal has otherwise had regard.

   Conclusion

10. Having considered the available information and the overall circumstances as set out above, the Tribunal is of the view in this case that the weight of consideration is not in favour of the applicant. The applicant has not taken the opportunity to provide additional or further submissions, and the Tribunal has considered what has been made available, nonetheless. The Tribunal finds that the overall weight of consideration in this case leads to the conclusion that the visa should be cancelled.

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

    decision

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

    Alan McMurran
    Member