Coste (Migration)

[2018] AATA 4106

Coste (Migration) [2018] AATA 4106 (30 July 2018)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Alexandra Blanche Adeline Coste

CASE NUMBER:  1722304

DIBP REFERENCE(S):  BCC2017/746419

MEMBER:Jennifer Cripps Watts

DATE OF DECISION:  30 July 2018

DATE CORRIGENDUM

SIGNED:21 September 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words “Date:  30 June 2018” on the front page of the Decision Record should be replaced with “Date:  30 July 2018”.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Alexandra Blanche Adeline Coste

CASE NUMBER:  1722304

HOME AFFAIRS REFERENCE(S):          BCC2017/746419

MEMBER:Jennifer Cripps Watts

DATE:30 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 30 July 2018 at 4:46pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa –Subclass 457 (Temporary Work (Skilled)) – member of family unit – breakdown of relationship – new partner – awaiting other visa outcome – ceased relationship with primary visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360
Migration Regulations 1994 (Cth), r 1.12

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 12 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the applicant was no longer a member of the primary visa holder’s family unit, as prescribed by r.1.12 of the Regulations. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 30 July 2018.  The invitation stated that if she did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.  

4. A response to the hearing invitation was received on the morning of the hearing, 30 July 2018.  The applicant appeared before the Tribunal on 30 July 2018 to give evidence and present arguments.  She brought a support person with her who remained in the hearing room but chose not to give evidence.  The applicant provided no additional documentary information in support of the review and confirmed at the hearing that she did not intend or wish to. 

5. The applicant was represented in relation to the review by her registered migration agent, Mr Mark Ryan, Migration Agent Registration Number 1461849.  He did not attend the hearing.

6. 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

7. 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?

8. 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.

9. The applicant entered Australia in 2016 holding a subclass UC-457 visa as a dependent member of the family unit of Mr Matthew Thomas.  In September 2017, the delegate wrote to the applicant and notified her of an intention to cancel her 457 dependant visa because it appeared she was no longer in a relationship with the primary visa holder and had ceased to be a member of his family unit, since around February 2017.  The circumstances under which she was granted the visa no longer existed.

10. There was a s.375A certificate on the file which referenced folios in the Department file containing information that led to the Department becoming aware of the breakdown of the relationship.  A copy of the s.375A certificate was provided to the applicant.  It was explained what is meant by the certificate and the information it relates to.  The essence of the information that was the subject of the folios in the certificate was given to her.  She was told that it appeared to the Tribunal it was not in dispute her relationship with the primary visa holder, Mr Thomas, had ended and she was reminded that she had provided a detailed response about the breakdown of that relationship and her intention to lodge another 457 application as the dependant of her new partner, Mr Sguerso, to the delegate in September 2017, shortly before her visa was cancelled. 

11. It was explained to the applicant that, nonetheless, the information is adverse information and it would be a reason or part of the reason for affirming the delegate’s decision to cancel the 457 visa that is the subject of this review.  That is, because she ceased to be a member of Mr Thomas’ family unit in around February 2017.  She was given the option of commenting or responding at the hearing or after it and elected to make comments at the hearing.

12. The applicant did not provide the Tribunal with any additional documents in support of her application for review.  She was asked if she would like to address the Tribunal about her matter.  The applicant  provided the following information:

    a.The relationship with Mr Thomas ended in around February 2017

    b.Towards the end of the relationship she was afraid, stressed and uncomfortable in the relationship because he didn’t accept the breakdown and wanted to try to sort things out by going away for the weekend

    c.Mr Thomas wanted her not to take her phone with her if they went away together for the weekend, for privacy, but that she did not want to do that because her parents would not know where she was

    d.Mr Thomas’ behaviour was very erratic and this made her nervous

    e.She feels that Mr Thomas took advantage of the situation (that he was the primary visa holder) and was very manipulative, saying he was going to cancel her visa

    f.It was not very fair that Mr Thomas could arrange to have her visa cancelled

    g.Mr Thomas told her she had to go back to the United Kingdom and tried to make her look at and book flights, but the applicant did not want to go back

    h.She did not want to leave after the relationship broke down because she has work here, performing, and she is about to start a contract working in a musical

    i.She was desperate to find a visa option after the relationship broke down and claims to have done everything she could to stay in Australia legally, including considering applying for a student visa or for a work sponsorship, but neither of these options was suitable

    j.In around April or May 2017 she started a relationship with Mr Sguerso (with whom she has subsequently lodged a subclass 457 dependant application, in September 2017) and was aware that she had to be in the relationship for six months before she could apply for and be granted the 457 dependant visa with him

    k.She claims that the relationship with Mr Sguerso that commenced in April 2017 is genuine

    l.She is doing some charity work

13. The applicant was asked if she had informed the Department of the change to her relationship status with Mr Thomas and said she did not inform the Department of the change to her circumstances, from February 2017 up to September 2017 (in relation to the visa that is the subject of this review), that is, that she was no longer a member of Mr Thomas’ family unit, but says she tried to obtain information from the Department during the period from February to September 2017 about how she could regularise her visa status.

14. The Tribunal is satisfied, on the evidence provided by the applicant, that she ceased to be in a relationship with the primary visa holder from around February 2017 and, from that time, ceased to be a member of his family unit, as defined in r.1.12 of the Regulations.

15. 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

16. 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’.

17. At the hearing, the applicant was asked if she wished to continue to continue the application for review and said she did.  As discussed above, she outlined the matters surrounding the circumstances leading to the cancellation of her 457 visa that is the subject of this review.  She said she is in a genuine de facto relationship with someone else now.

18. The applicant confirmed at the hearing that in September 2017 she lodged a still as yet undecided visa application as a member of the family unit of a different 457 visa holder, Mr Sguerso. 

19. The applicant claims to have a need or desire to stay in Australia, but did not provide any reliable evidence of her work commitments.

20. The Tribunal is not wholly satisfied that the applicant notified the Department in a timely manner of the change to her relationship status in 2017 (affecting whether she met the criteria for the subclass 457 dependent visa), or that she did so of her own volition.  She appears, on the available evidence, to have been otherwise compliant with her visa conditions.

21. The applicant was asked at the hearing whether any hardship will be caused to her if the visa (with Mr Thomas) is cancelled and said she doesn’t believe so.  The Tribunal puts this response in the context of her awaiting a decision in her subsequent 457 visa application with Mr Sguerso.  On her oral evidence, she is in a relationship with him and she is also working.  The Tribunal’s view is that the applicant is working and able to support herself and even if the visa is cancelled, as she will still hold a bridging visa with work rights.

22. The applicant, whilst giving evidence that she found Mr Thomas’ way of dealing with the relationship breakdown and cancellation of her visa confronting and unfair, has not claimed, nor has she provided any evidence, that she was a victim of family violence.

23. The applicant has no dependants and no consequential cancellations will arise if the visa is cancelled. 

24. The applicant is awaiting an outcome in her 457 visa application with Mr Sguerso and holds a bridging visa associated with that application.  There is no information before the Tribunal that indicates she would, if the visa is cancelled, be unlawful and liable to detention as a consequence of the cancellation.

25. The applicant is a citizen of the United Kingdom.  The applicant has not claimed or provided evidence of any matters that would cause the Tribunal to be concerned that any international obligations, including non-refoulement and best interests of the children as a primary consideration would be breached as a result of the cancellation.

26. The applicant was asked why, as she has given evidence she is no longer a member of the family unit of the primary applicant, Mr Thomas, she is still pursuing the visa cancellation through the Tribunal.  She said she still wants to have a decision because of “the way he did it”.  The Tribunal rephrased the question and asked what result she was hoping to get out of the hearing.  The applicant said that she’s aware the matter would be “dismissed”.  She was told that the Tribunal, at that time, would still consider everything and make a decision after the hearing.  She said that she just wanted to give her opinion of what really happened (regarding the relationship breakdown with Mr Thomas).  The Tribunal heard from the applicant about the relationship breakdown and given consideration to the information.

27. The 457 visa is a temporary visa, not a permanent one.  On the evidence, the Tribunal does not consider there are any strong family, business or other ties the applicant has to Australia that would cause undue hardship to her if the visa was cancelled and she was required to depart.  This is notwithstanding that the applicant says she is in a relationship and has a job.  While she holds a bridging visa associated with her other 457 application, she will, if she chooses to, be able to remain in the relationship and work.

28. The applicant is no longer in a relationship with the primary visa holder.  She is not, on her own evidence, a member of his family unit.  The Tribunal finds that there are no compelling reasons, in its discretion, why the visa should not be cancelled. 

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

    decision

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Jennifer Cripps Watts
    Member