Citolin (Migration)

[2019] AATA 2418

Citolin (Migration) [2019] AATA 2418 (16 April 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ricardo Citolin

CASE NUMBER:  1830649

HOME AFFAIRS REFERENCE(S):           BCC2018/3774820

MEMBER:Adrienne Millbank

DATE:16 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 April 2019 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – member of family unit – circumstances no longer existed – remained in Australia following changed circumstances – did not seek to regularise status – used Student visa to prolong stay – period of non-compliance significant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 October 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a 31 year old Brazilian national who first arrived in Australia on 3 November 2016, on a Student (Subclass 500) visa. He completed a seven-month English language course in June 2017, before his visa expired on 9 July 2017.

3. The applicant was granted the visa on 3 August 2017 on the basis of his relationship with his former partner, a fellow student whom he met onshore. The parties separated in November 2017. At the time of decision, the applicant claims to be in a relationship with another student, a Brazilian national, whom he also met in Australia.

4. The Delegate cancelled the visa under s.116(1)(a) on the basis that the applicant’s circumstances had changed: his Student visa was granted on the basis that he was a member of the family unit of his former partner, the primary visa applicant. The Department was formally notified on 13 June 2018 by the applicant’s former partner that she and the applicant were no longer in a relationship.

5. The Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on 14 September 2018, to which he responded on 27 September 2018, after being granted a brief (five day) extension of time. The applicant claimed in his response that he had suffered psychologically from the relationship breakdown, and that the cancellation of his visa could cause him to relapse into further psychological suffering. The Delegate, having considered the applicant’s response, considered the grounds for cancelling the visa outweighed the reasons for not cancelling, and cancelled the visa on 17 October 2018.

6. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. On 21 March 2019 the Tribunal invited the applicant, by email, to a Tribunal hearing on 10 April 2019 in Brisbane. On 28 March 2019 the applicant, through his representative, requested a postponement to a later date, for the reason that the applicant was assisting a friend to care for his terminally ill father in Sydney. The Tribunal did not agree to postpone the hearing, but offered to organise a video hearing from Sydney. The applicant declined this offer.

8. The applicant appeared before the Tribunal in person in Brisbane on 10 April 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

9. The applicant was represented in relation to the review by his registered migration agent.

10. 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

11. 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?

12. 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.

13. As noted, the applicant’s former partner, the primary visa holder, formally notified the Department on 13 June 2018 that the relationship had ended. In his response of 1 October 2018 to the NOICC, the applicant acknowledged that the circumstances under which he was granted the visa had changed; that while he was in a relationship with the primary visa applicant at the time of application he and the primary visa holder ‘ended up going in different ways’. At hearing, the applicant confirmed that he understood the Delegate’s decision, and that he understood that the particular fact or circumstances on which the decision to grant the visa was made, no longer existed.

14. 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

15. 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’.

16. The applicant advised in his NOICC response and at hearing that his original purpose in coming to Australia was to learn English, to ‘have a better future’ in Brazil by adding English to his work skills. He advised at hearing that he ‘did a few months’ of English, but had not reached his desired level when it was time to renew his visa. He stated that he gave up his studies in order to provide support for his former partner, through working and maintaining the household while she studied, and that this was a ‘big mistake’.

17. At hearing, the applicant described his purpose at the time of decision in remaining in Australia as twofold: he is considering undertaking further studies in English and in the trades sector, in automotive engineering, but principally, he wants to remain with his new partner, whose Student visa is not due to expire until 2021.

18. The applicant stated that he worked in the automotive industry in Brazil, in truck production, and claimed that he intends to return to the same employment. He advised that he could reapply for a position with the same employer only after a two-year period has elapsed from his date of resignation, and that enhanced English and a trade qualification would help him to progress in his field. He advised that while in Australia and on limited work rights, he has worked as a labourer.

19. The applicant advised the Tribunal that he has been in a relationship with his new partner since December 2017; that they moved in with each other in March 2018; and that in January 2019 he signed a six-month rental lease for a property where they are living together on the Gold Coast. The applicant advised that his new partner doesn’t want to return to Brazil in the near future because she has recently divorced, and suffered violence at the hands of her ex-husband. The applicant claimed to be fearful of returning himself to Brazil because his new partner’s ex-husband was jealous and had threatened him through an online social site.  

20. The Tribunal accepts that the applicant’s new partner has gone through a difficult divorce with her ex-husband; that the police in Brazil were called to a domestic incident or incidents; and that the applicant’s new partner does not wish to return to Brazil in the next couple of years, before, as described by the applicant, ‘things calm down’. The Tribunal does not accept that the applicant is unable to return to Brazil, including temporarily, in the short term, in order to lodge another visa application offshore. The Tribunal considers the applicant could avoid contact with his new partner’s ex-husband, or go to another country to lodge a visa application. The Tribunal accepts that the applicant is in another relationship, but does not accept that his new relationship is a compelling reason to restore his visa based on his previous relationship.

21. Regarding the applicant’s stated purpose in remaining in Australia to study English and obtaining a trade skill, the Tribunal notes that the applicant has not enrolled in any course of study since his enrolment in an English course from 6 November 2016 to 9 June 2017. The Tribunal notes that the applicant remained in Australia for nearly a year following his separation from the primary visa holder, from November 2017 to October 2018 when his visa was cancelled, on a Student visa. When asked at hearing why he didn’t enrol in a course of study during this time, such as a short intensive English course, if that was his purpose in remaining in Australia, the applicant stated that his former partner’s agent advised him not to. He stated that his former partner’s agent told him not to do anything; to wait until he was contacted by the Department. The applicant provided no further explanation, despite repeated questioning, as to why he followed this agent’s advice.

22. The Tribunal notes that the applicant could obtain an automotive trade qualification in Brazil and does not accept his argument that trade training in Brazil is inferior to that in Australia such as to significantly affect his future employment prospects. The Tribunal notes that the applicant indicated also that he intended to return to his previous employer where he needed only English to enhance his promotion prospects. The Tribunal does not find the applicant has a compelling need to remain in Australia for study purposes.

23. The applicant responded to his NOICC, and there is no information before the Tribunal to indicate that he has not complied with other visa conditions. However, the applicant confirmed at hearing that he did not contact the Department regarding the implications of his changed circumstances for his visa and stay. He did not contact the Department to seek advice regarding alternative visa options. The applicant remained living and working in the country for nearly a year on the Student visa after separating from the primary applicant. The Tribunal gives no weight to the applicant under this consideration.

24. The applicant claimed that he would experience financial hardship if he has to return to Brazil because he signed a six month lease on a rental property in January 2019. He further claimed that he would earn more in Brazil if he completes more English language training and obtains a trade qualification. The Tribunal notes that the applicant signed the rental lease after receiving notification that his visa had been cancelled. The Tribunal further notes that the applicant could obtain trade qualifications in Brazil. The Tribunal gives no weight to the applicant under this consideration.

25. The applicant confirmed at hearing that at the time of decision he no longer suffers from a psychological illness, following treatment he received from a psychologist. The Tribunal accepts that the applicant might suffer some financial and emotional hardship if he has to leave the country without or before his new partner, and if he feels the need to avoid locations and people who might put him into contact with his new partner’s ex-husband. The Tribunal gives some weight to the applicant for this reason. 

26. The cancellation arose when information was provided to the Department that the relationship between the applicant and the primary visa applicant had ceased. The applicant claimed in his response to the NOICC that the relationship breakdown was difficult and traumatic for him, and that he gave up his own study ambitions to support his former partner. The Tribunal accepts that the applicant was distressed by the relationship breakdown, and gives some weight in favour of the applicant under this consideration.

27. The applicant has no dependents and there would be no consequential cancellations under s.140. The cancellation would result in the visa holder being unlawful and liable to detention, however there is nothing before the Tribunal to indicate that he would not be granted a further Bridging visa E to enable him to organise his affairs and depart the country. The Tribunal notes that the applicant would not be subject to provisions in the Act preventing him from making further valid visa applications without the Minister’s intervention.

28. The applicant confirmed at hearing that he has no reason to fear or otherwise not want to return to Brazil other than his claim to fear aggression ‘until things settle down’, from his new partner’s jealous ex-husband. As noted the Tribunal considers that the applicant could return to Brazil in the short term and avoid contact with his new partner’s ex-husband.

29. The applicant has no children. The Tribunal finds that there are no international obligations, including non-refoulement and best interests of a child that would be breached as a result of the cancellation.

30. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

31. The applicant remained in Australia for nearly a year following his changed circumstances. He did not seek to regularise his status by applying for another visa. The Tribunal considers that the applicant has used the Student visa system to prolong his stay in Australia; that his long period of non-compliance is significant; and that the reasons to cancel the visa outweigh the considerations in his favour.   

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

    DECISION

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Adrienne Millbank
    Member