Chou (Migration) - [2018] AATA 1055

Chou (Migration) [2018] AATA 1055 (9 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Master Sebastian Chou
CASE NUMBER:  1717032
DIBP REFERENCE(S):  BCC2017/2688341
MEMBER:Kira Raif
DATE:9 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Partner) visa.

Statement made on 09 March 2018 at 11:25am

This is an application for review of a decision dated 28 July 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).
The visa applicant is a minor child born in August 2014. His mother made an application for a partner visa and was granted the temporary visa in June 2012. The applicant was included in the mother’s application for the permanent visa upon birth and the visa was granted in September 2014. In May 2017 the mother was issued with the Notice of Intention to Cancel her visa under s.109 and the visa was subsequently cancelled on 28 July 2017. The visa held by the applicant was cancelled on the same day under s.140 of the Act as a consequence of the cancellation of the mother’s visa. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 18 January 2018 to give evidence and present arguments. The applicant’s mother gave evidence on behalf of the applicant. The Tribunal also received oral evidence from a number of witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a visa because his mother was granted the visa, in accordance with r.2.08 of the Migration Regulations 1994 (the Regulations). The visa held by the applicant’s mother Ms Chandy Chou was cancelled on 28 July 2017 and the Tribunal affirmed that cancellation on 8 February 2018. This information was the subject of the Tribunal’s s.359a letter to the applicant and the Tribunal has considered the applicant’s written submissions in response.
In his written submission to the Tribunal of 16 January and 22 February 2018 the applicant argues that the delegate incorrectly identified the statutory provision under which he was granted the partner visa and notes that he may have continued to hold the Subclass 801 visa. The Tribunal is mindful that the decision under review is the cancellation of the temporary visa. It is not in dispute that the applicant held the partner visa which he was granted as a newborn child and he was added to his mother’s application. Whether or not the applicant may be the holder of another visa, or his entitlement to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 1055
Decision Date: 9 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by a minor child, the applicant, against the cancellation of his Subclass 820 (Partner) visa. The applicant's visa was granted on the basis of being a member of the family unit of his mother, Ms Chou. The dispute arose because Ms Chou's own visa had been cancelled, meaning the applicant could no longer fulfil the purpose of his visa by remaining in Australia with his mother. The decision was made by Senior Member Kira Raif of the Tribunal.

The primary legal issue before the Tribunal was whether there were grounds to cancel the applicant's visa under section 140(2) of the Migration Act 1958 (Cth), given that his mother's visa had been cancelled. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, taking into account the applicant's circumstances, including the degree of hardship that might be caused by cancellation and the child's best interests.

The Tribunal reasoned that section 140(1) of the Act did not apply as the applicant was not granted a visa as a member of the family unit of his mother in the primary sense. Instead, he held a visa solely because his mother held one. Consequently, section 140(2) provided grounds for cancellation following the cancellation of Ms Chou's visa. In considering its discretion, the Tribunal noted the applicant's birth and lifelong residence in Australia, his relationship with his aunt, and his financial support through Centrelink. However, it found that at his age, the applicant would adapt to a new environment and language. The Tribunal also considered the benefit of the applicant being with both parents in Cambodia, despite Ms Chou's claims about the father's lack of support, finding that the father would likely provide parental support.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 820 visa. It concluded that while some hardship might result, the child's best interests were served by remaining with his parents, neither of whom had a permanent visa to remain in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa because his mother’s visa was cancelled. The applicant can no longer fulfil the purpose of his stay in Australia. The Tribunal acknowledges that some hardship may be caused if the visa is cancelled but the Tribunal has formed the view that at his age, the child’s best interests are to remain with his parents and neither of the child’s parents have a permanent visa to remain in Australia. 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 820 (Partner) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal finds the applicant is a person to whom s.140(1) does not apply because he was not granted a visa on the basis of being a member of the family unit of his mother. The Tribunal finds that the applicant is a person who held a visa only because Ms Chou held a visa. As Ms Chou’s visa was cancelled, the Tribunal finds there are grounds for cancelling the applicant’s visa under s.140(2) of the Act. Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified 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 The purpose of visa grant to the applicant is to enable him to be with his mother. At the time of this decision, the mother’s visa has been cancelled. The applicant is unable to fulfil the purpose of the visa by remaining in Australia if his mother is not able to remain in Australia. The extent of compliance with visa conditions The Tribunal is not aware of any non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant was born in Australia and has lived his entire life in Australia. The Tribunal acknowledges that he may be used to the Australian way of life and may not speak another language fluently. However, given his age, the Tribunal is of the view that the visa applicant will have no difficulty adapting to a different environment or a new country or learning another language. The Tribunal is mindful that the applicant’s father resides in Cambodia while his mother is no longer a holder of a permanent visa and has no right, at present, to remain in Australia on a permanent basis. The applicant told the Tribunal (through his mother who gave evidence on his behalf) that the child’s father never provided financial support to the child and Ms Chou stated she was not sure how she would survive in Cambodia. The Tribunal is mindful that while in Australia, the family had financial support from various other sources, including Centrelink, so there may simply have been no need for the child’s father to provide financial support. The family’s circumstances may well be different if the family were to live in Cambodia and the child’s father may have better capacity to provide financial support to the family. Ms Chou told the Tribunal that the child’s father, Mr Ben, does not care for her or the child. However, the Tribunal is mindful that she did sponsor Mr Ben for the visa and continued to do so until as recently as July 2017. Ms Chou’s evidence is that she would have appealed the decision to refuse the visa, suggesting there is still an ongoing relationship. The Tribunal does not accept Ms Chou’s claim about Mr Ben’s lack of support or indifference toward the child. The Tribunal has formed the view that if the applicant were to leave Australia, he would have parental support from both his father and his mother.