Cho (Migration)

[2021] AATA 4996

Cho (Migration) [2021] AATA 4996 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cheolhwa Cho

CASE NUMBER:  2108422

HOME AFFAIRS REFERENCE(S):          BCC2020/1278946

MEMBER:Kira Raif

DATE:15 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 15 December 2021 at 1:45pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – relationship ceased – contribution to the applicant’s employer – mental health issues – financial hardship – ongoing court proceedings – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 25 June 2021 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 the Skilled (Temporary Graduate) vias in February 2020. In June 2021 the applicant was issued with the Notice of Intention to Consider Cancellation as the delegate formed the view that there may be grounds for cancelling the visa under s. 116(1)(a) of the Act. The applicant provided her response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 December 2021 to give evidence and present arguments. The applicant was represented in relation to the review.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. 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)).

6. 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.

7. 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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled visa on the basis of being a secondary applicant and a member of the family unit of Mr X (Full name withheld). The Department received advice that the applicant’s relationship with Mr X ended in March 2020. In her response to the NOICC the applicant confirms that her relationship with Mr H ended and that they are in the process of obtaining a divorce. In her submission to the Tribunal dated 8 December 2021 the applicant also confirms that she was granted the visa on the basis of her spousal relationship with Mr X and that the relationship ended around March 2021. The applicant concedes that there are grounds for cancelling her visa.

9. The Tribunal finds that the applicant is no longer a spouse or de facto partner of Mr X. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’. The Tribunal finds that the applicant is no longer a member of the family unit of Mr X. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of the applicant being a member of the family unit of her spouse and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.

10. 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

11. 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

12. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a specified 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 the applicant to remain with her partner and in her submission to the Tribunal the applicant states that a part of the purpose of her travel was to provide financial support to Mr X. However, the applicant confirms that the relationship is no longer in existence. 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 her visa because she is no longer in a relationship with the primary visa holder.

    The extent of compliance with visa conditions

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

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

14. The applicant provided with her response to NOICC a statement from her employer, outlining the contribution the applicant has made to the company, providing the employer with the opportunity to expand the business and employ more staff. The employer states that the business will suffer if the applicant cannot continue with her employment. The applicant’s employer was also available to give oral evidence to the Tribunal in relation to the applicant’s employment. The Tribunal accepts that the applicant has contributed to the business and is well regarded and is prepared to accept, having regard to the presented evidence, that if the applicant cannot continue in the business, it may have an adverse effect on the company, thereby causing hardship to the business. Importantly, the Tribunal acknowledges the applicant’s evidence that if her visa is reinstated, she intends to seek a Subclass 408 visa and continue her employment with the company.

15. The applicant refers to her poor mental health and the effect that her circumstances and the cancellation of her visa had on her mental state. The applicant provided to the delegate a medical certificate which refers to her being anxious and depressed. The applicant provided further evidence to the Tribunal in her submission dated 8 December 2021. The applicant clams she suffers from depression, anxiety and post-traumatic stress disorder. She provided a medical report from Dr Mevill-Smith which outlines the effect of the relationship breakdown and of the visa cancellation on the applicant’s health.

16. The applicant submits that she has significant psychological and other support in Australia, including from her health professionals and her present boyfriend and friends in Australia. The applicant states that she attends regular counselling. The applicant also claims that she may refuse to seek mental health treatment in South Korea due to cultural norms. The applicant refers to her hospital admission in December 2021 due to stress relating to her migration matters, stating that she is at risk of suicide. (The Tribunal is mindful that the hospital admission report expressly refers to the applicant denied ongoing suicidal ideation and guaranteed her safety outside of hospital). The applicant states she would not have the required support in Korea. The Tribunal accepts, on the basis of the presented medical reports, that the applicant suffers from anxiety and depression and that her condition has been exacerbated by the cancellation of her visa and the uncertainty of her future.

17. The applicant told the Tribunal that before coming to Australia, she had to borrow from her family to support her former spouse and that there would not be anyone in her home country to assist her financially. The applicant states that due to the expense of study in Australia, she contributed all of her savings to support her husband and she also borrowed from others to be able to support him and their living expenses. The applicant states that she has nothing to return to in Korea. The Tribunal accepts that evidence and accepts that financial hardship would be caused to the applicant by the cancellation of the visa.

18. The applicant explained that she did not plan to return to Korea because she assumed her husband would include her in his permanent visa application as he had promised to do. The Tribunal acknowledges that even though the visa in question is a temporary one, in the particular circumstances of this case, the applicant did have an assumption that she would be permitted to stay in Australia for a longer period. The Tribunal accepts that the applicant formed strong social and employment ties to this country. She also referred to ongoing court proceedings to deal with the family issues.

19. The applicant refers to her present relationship (which she describes as boyfriend – girlfriend) and close friendships that she has formed. The applicant states that hardship would be caused to her boyfriend and friends if her visa is cancelled. The Tribunal is prepared to accept that some degree of hardship may be caused to the applicant’s partner by the cancellation of her visa, if it results in the applicant being required to leave Australia.

20. The Tribunal accepts that considerable hardship would be caused to the applicant if her visa is cancelled, in particular having regard to her health, employment and social ties in Australia, the loss of opportunity resulting from her ongoing court case and, significantly, because the cancellation of the visa may prevent the applicant from seeking other visas in Australia.

    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

21. 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.

22. In her response to the NOICC the applicant outlined the circumstances of her relationship and which led to the breakdown of her relationship with Mr X and presented evidence of family violence claims made during the relationship. The applicant presented a number of statements and other documents concerning the various circumstances of her relationship  and other aspects of her life. In her submission to the Tribunal the applicant claims that the relationship broke down due to factors beyond her control and that family violence was a contributing factor.

23. The Tribunal generally accepts the applicant’s evidence and accepts, for the purpose of this review, the applicant’s explanation about the circumstances of the relationship and the reasons for its breakdown. The Tribunal acknowledges the guidelines with respect to family violence.

    Past and present behaviour of the visa holder towards the department

24. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

25. There are no persons whose visas 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

26. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she 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. The Tribunal accepts that these matters may cause some hardship to the applicant.

    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

27. There is no evidence, and the applicant does not claim, that Australia’s international obligations are engaged in this case.

28. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa under s. 116 of the Act. The Tribunal notes, however, that the circumstances leading to these grounds arise due to family violence and, in the Tribunal’s view, circumstances beyond the applicant’s control. Having regard to the particular circumstances of the applicant’s relationship, her present mental health, financial situation, ongoing court proceedings and ongoing relationship in Australia, the Tribunal has formed the view that significant hardship would be caused to the applicant if her visa is cancelled. The Tribunal acknowledges that the setting aside of the cancellation would provide the applicant with an opportunity to seek another substantive visa in Australia, which she intends to do. In the Tribunal’s view, and having regard to the particular circumstances of this case, the applicant should be given that opportunity to seek another visa in Australia. This can only happen if the present cancelation is set aside.

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

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Kira Raif
    Senior Member