Dhaliwal (Migration)

[2023] AATA 4055

Dhaliwal (Migration) [2023] AATA 4055 (9 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovepreet Singh Dhaliwal

CASE NUMBER:  2210943

HOME AFFAIRS REFERENCE(S):          BCC2021/2156122

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         9 August 2023 at 10:33 am (NSW time)

DATE OF WRITTEN RECORD:                16 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 16 November 2023 at 11:16am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was no longer married to the primary visa holder – no longer a member of her family unit – a divorce order was made – does not genuinely want to study a business course for legitimate reasons – applicant has been in breach of condition 8516– decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 116

Migration Regulations 1994 (Cth), cl 500.311

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision made by a delegate of the Minister for Home Affairs who, on 25 July 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under Sec 116 of the Migration Act 1958 (the Act).

2. At a video hearing held on 9 August 2023 the Tribunal made an oral decision and gave oral reasons for it.

3. On 29 September 2023 the Department initially requested the Tribunal to provide a written record of those reasons. There have also been more recent requests.

4. What follows is the written record.

   Background

5. The visa, which had been granted to the applicant on a secondary basis, was cancelled under Sec 116(1)(a) of the Act because the applicant was no longer married to the primary visa holder, his former wife, Kamal, was thus no longer her spouse and consequently no longer a member of her family unit as required under the Migration Regulations 1994 (the Regulations).

6. Technically, there are two issues arising on the review. The first is whether that ground for cancellation is made out, and if so, whether the applicant’s secondary visa should be cancelled.

7. For the following reasons, I have decided to affirm the delegate’s decision to cancel the applicant’s secondary visa. 

   Procedural and documentary aspects, the hearing

8. The review application was filed on 29 July 2022 and is therefore within time. The applicant also filed a copy of the delegate’s decision.  A hearing invitation was sent to him on 13 July 2023 to participate in a video conference today, 9 August. Two hours were allocated for the hearing.

9. The applicant accepted that invitation on 21 July 2023. In his response form he indicated that he proposed to rely on a statutory declaration and other documents, but he has not in fact filed any documentary material in support of his case.

10. The applicant participated today at the hearing initially by way of video conference and later the telephone. Almost all his oral evidence was given through a Punjabi interpreter. He was not otherwise assisted.

11. There were some visual transmission issues during the hearing. These were resolved temporarily in the initial stages but ultimately, about 25 minutes into his evidence, they re-surfaced and were unable to be rectified satisfactorily by the Hearings team so I switched to a telephone hearing having first obtained the applicant’s consent to this course. The balance of his oral evidence was given in that way.

12. Apart from the documents in the Tribunal file, such as it is, I have had access to a paper file from the department which contains various documents including a copy of the visa application filed on 11 March 2019 (the VA), a copy of the NOICC dated 8 July 2022, the applicant’s response to it of 18 July 2022 and a copy of the decision under review.  There is also a copy of the visa grants made to the applicant and his former wife on 14 May 2019.

13. There are other documents in the department file including a copy of a Divorce Order dated 1 October 2021 and a copy of a Form 1122 which the applicant’s former wife provided to the department on or about 5 November 2021 notifying it of a change to her personal circumstances, namely that she had been divorced from him.

14. In addition to that material, I have had access to a copy of the Movements Details record for the applicant together with a PRISMS record which relates to the academic history of his former wife.

15. No PRISMS record for the applicant is available because he has not engaged in studies since he arrived in Australia in May 2019 under the secondary visa.

    Credibility issues, certain features of his evidence

16. The applicant’s oral evidence occupied about one hour of hearing time. I was not impressed with it. Making allowances for the fact that a good deal of it was on the telephone I formed the impression that he was being less than frank at times. Parts of his evidence is also internally inconsistent. For example, his evidence as to whether he made any attempts to enrol in any courses of study was on any view irreconcilable. He told me that he asked an agent to do this after he procured his bridging visa, but he also told me that his understanding was that under that visa he had no study rights. When asked why he would instruct an agent to enrol him in a course of study if he knew that he had no study rights under the visa he accepted that the agent told him that he could not study but, if that is so, I can only speculate as to why he would have given instructions to his agent to take steps to enrol him in a registered course of study nonetheless.

17. His evidence to the effect that he was notified by an unidentified officer in the Tribunal that he had no study rights under his bridging visa is of particular concern. This amounts to nothing more than a misguided attempt to reinforce his review case by means of fabricated evidence. It would be very unusual for an officer in this Tribunal to give any such advice to an applicant, still less to initiate contact with him for that purpose. I do not accept that anything along these lines took place. This evidence does him no credit and serves only to undermine his general credibility.

18. Of course, the fact that he did not provide any documents in support of his case does not assist him either when it comes to my assessment of his overall credibility and, indeed, it only serves to exacerbate the difficulties which I have in accepting at face value his self-serving assertions on contentious issues. Having informed the Tribunal in his hearing acceptance form that he was intending to provide a statutory declaration and other supporting documents and not having done so he should at least have come forward to explain why. The inference I draw in these circumstances is that the documents would not have supported his case. 

19. The Movements Details record does indicate that his bridging visa had no useful study rights attached to it but, if the applicant genuinely wanted to study, he could have taken steps to rectify this, which he apparently never did. I will return to this aspect later.

20. During the early stages of the hearing, when I had the assistance of the visual, he appeared to me to be prevaricating at times and dissembling at other times. Long pauses in response to apparently simple questions did not instil in me any real confidence in what he was saying.

21. As I will point out later, parts of his oral evidence are quite incompatible with what he told the delegate in the NOICC response.

22. Overall, I found his oral evidence to be very unsatisfactory and I am not prepared to rely on it unless it is supported by other reliable evidence, is consistent with the objective features, is inherently plausible or amounts to an admission against interest. 

    Approaching the issues

23. Under s 116 of the Act, the delegate is entitled to cancel a visa if satisfied that a ground specified in this provision is established. Relevantly to this case, these grounds include those described in s 116(1)(a). Under this provision a visa may be cancelled if the delegate, or other specified decision maker, is satisfied that the decision to grant the visa was based wholly or partly on a particular fact or circumstance which is no longer the case or no longer exists. If satisfied that the ground exists the delegate must proceed to consider whether the visa should be cancelled having regard to the relevant factors, including matters of government policy where relevant.

24. The second issue, which I identified earlier, essentially involves an evaluative exercise in which the Tribunal must consider the relevant factors, give appropriate weight to them, and reach a discretionary decision which is a reasonable one in the circumstances.

    The decision under review

25. Turning to the first issue, namely whether a ground for cancellation of the visa exists under s 116(1)(a), in the NOICC the delegate notified the applicant that information had been obtained to the effect that he was no longer married to Kamal.

26. The NOICC states, and it is not relevantly in dispute, that he was granted the visa based on his dependency on his former wife, Kamal, as the primary applicant, and it then refers to the secondary criteria applicable to him, namely that in clause 500.311 which requires him to be a member of her family unit. 

27. Reference is also made to other provisions of the Act, which I do not need to cite in these reasons, and to the information which the department had, namely that contained in the Form 1022, in which Kamal said that a divorce had taken place, and the Divorce Order itself dated 1 October 2021 issued by the Federal Circuit and Family Court of Australia (the court). 

28. The delegate went on to recite the fact that the evidence was sufficient to demonstrate that the applicant was no longer in a defined relationship with Kamal, and that he thus no longer appeared to meet the requirements of sub-clause 500.311(a) of the Regulations. Based on this information, it appeared to the delegate that a ground for cancellation of his visa existed under s 116(1)(a) of the Act as the circumstances which permitted the grant no longer existed. He was invited to respond to these allegations, which he did.

29. On 18 July 2022, he sent an email to the department in which he stated that he was married to Kamal in February 2019, that it was an arranged marriage, that he had hopes it would succeed and that it did so in the early stages. He goes on to recite that, after coming out to Australia, issues arose in the marriage which led to their eventual separation. Kamal in due course sought a divorce. 

30. He goes on to say in his response that she never gave him any ‘paper’ relating to the divorce proceedings, that he did not know much about the legal process, and he thought he did not need to apply for a separate visa. He says that she betrayed him, that he was upset and depressed as a result due to what was happening in his personal life. He states that he married the wrong person. 

31. Just pausing here, I note that in his oral evidence he gave me a somewhat different account regarding his knowledge of the steps which she took to procure the divorce. He accepted today that he did receive a paper from Kamal asking him to consent to the divorce, evidence which is quite irreconcilable with what he said in the NOICC response.

32. The decision to cancel his visa was made and notified on 25 July 2022. The delegate considered the applicant’s response, as he was required to do, but went on to note that the applicant had not disputed that an order dissolving their marriage had been made by the court on 1 October 2021.

33. It may be, as the applicant had submitted to the delegate, that he was not aware that the divorce had been finalised, but he was on any view of the evidence apparently on notice that Kamal had instituted divorce proceedings and, indeed, according to his oral evidence, he consented to the divorce. I am not prepared to accept his case, if it indeed forms part of it, that he was not told that a divorce order had been made. Ordinarily it is, of course, the court which serves on a respondent to divorce proceedings a certified copy of the divorce order, not the applicant for the order. In any event, I do not see how it could really assist him on this review given that he was obviously aware of the separation.

34. In any event, there can be no doubt that a divorce order was made and, on that basis, it is patently clear to me that the delegate correctly found that a ground for cancelling the visa existed under s 116(1)(a) because he was, in fact, from that point on no longer in a married relationship.

35. In Part D of the decision, the delegate considered whether to cancel the visa. It is also readily apparent to me that relevant matters were addressed, namely the legislation and the guidelines set out on the Procedural Instruction Manual (General Cancellation Powers). The delegate went on to consider the circumstances in ways which were clearly open. I will come back to have a look at these aspects shortly.

    Evidence and findings in the review

36. In his oral evidence he basically confirmed what he had stated in the NOICC response, namely that his marriage had been dissolved by the court. It is quite obvious that, on any view of the evidence, by the time the NOICC was issued he was no longer in a married relationship with her, this having been dissolved by the court, that the ground for cancellation under s 116(1)(a) was established and that the power to cancel his secondary visa was thereby enlivened. Clearly, his secondary visa had been granted to him wholly or partly on the basis that he was at that time married to Kamal.

37. Turning then to the second issue which is, as I say, the main issue on this review, unlike a cancellation under section 109 of the Act, there are no prescribed circumstances which I am bound to consider when reviewing a decision to cancel a visa under s 116(1)(a) of the Act. That said, regulation 2.41 does provide a useful shopping list of factors which I can have regard to at the discretionary level, to the extent to which they are relevant, along with other relevant matters including the PAM3 guidelines and his NOICC response.

38. Turning to the applicant’s oral evidence, he accepted that he was given a copy of the divorce order in or about early October 2021, shortly after that order was made.

39. During his evidence I asked him whether he had taken any steps to notify the department of his changed circumstances arising from his divorce. His ultimate response to this question, and I had to ask it more than once, was that he had not done so. He sought to explain this by saying that he was stressed at the time and not aware of the need to inform the department of his changed circumstances. Indeed, he went so far as to suggest that he could not remember having been informed by the department at any stage of the need to do this.

40. I do not accept his evidence on these matters. I know from experience in these cases that when a visa of this type is granted the visa holder is informed in writing of the requirement to advise the department of changed circumstances. I take notice of the fact that a letter to this effect would have been sent to the applicant at the time the visa was granted, and I do not accept his evidence that he was not aware of the need to inform the department of this once his divorce was finalised.

41. He accepted that he knew the subject visa was granted to him as a secondary applicant and that there were conditions attached to it, including 8516 which required him to continue to satisfy the secondary criteria. On any view, he has been in breach of that condition since the divorce order was made and he has also breach of the requirement that he notify the department of his changed circumstances.

42. In my view, both of those matters carry significant weight in favour of the cancellation of his secondary visa. 

43. I asked him about his work history in Australia. He told me that he found work two or three months after arriving here collecting rubbish bins on a part-time basis. He went on to say that he is no longer in that line of work, that he is now working for a supermarket or a grocery store collecting trolleys. He told me that he is employed three or four days a week, has been doing this for about one year, that he lived by himself, that he was not able to earn enough to support himself, that he had financial support from his father from time to time, the last occasion being about four months ago.

44. Of course, in a case such as this one where a review applicant does not provide any additional documentary evidence at all, it is not my function to conduct a roving enquiry to fill in the gaps in his case.   

45. I asked him about his current intentions. He said that his divorce had resulted in some depression but, absent any credible medical evidence to this effect, I do not accept this assertion, nor do I accept that it impacted on him in such a way, or to such an extent, that it compromised his ability to function effectively or was such as to prevent him from acting responsibly. I do not doubt that his separation would have been upsetting but I do not accept that it would have had any ongoing or lasting effects which would have prevented him from functioning effectively.

46. He told me today that he wanted to study so he can go back to India and start his own agricultural business. He said he wanted to study a business course here. He mentioned his father in the same breath but when pressed on this indicated that his father was not involved in agriculture, he was a bus driver.

47. I do not accept that the applicant genuinely wants to study a business course for legitimate career related reasons. If he really wanted to study such a course, he could have applied for a student visa as a primary applicant or approached the department to waive the “no study” discretionary condition which attached to his bridging visa. He has not taken any steps in these directions, or either of them, a fact which suggests to me that he does not genuinely want to study a business course for legitimate reasons. This too is a factor which, in my view, attracts some weight towards cancellation of his secondary visa in the overall circumstances.

48. Initially, he told me that he was unaware that his bridging visa contained a restriction on study but later changed his evidence on this topic and went so far as to incredulously suggest that a Tribunal officer had informed him of this. He gave other oral evidence to the effect that he had retained an agent to take steps to enrol him but, absent any corroboration, I do not accept that he did. He did not identify the agent nor did he explain why he would give instructions to an agent to try to enrol him in a course of study if he knew he had no study rights. 

49. I take these adverse matters into account at the discretionary level. They certainly do not assist his review case.

50. The purpose of the applicant’s travel to and stay in Australia was of course to support the primary applicant, Kamal. That purpose may have evaporated through no fault of his own, I cannot really make any meaningful comment about this absent any evidence from him as to the circumstances in which the separation occurred, but the fact remains that he was granted the visa on a secondary basis because he was married to her at the time and, for whatever reason, they separated and she applied for a divorce, to which he consented. The primary purpose of the grant of his visa was to support her, and of course he could no longer do that once the separation took place. The delegate gave this aspect significant weight in favour of cancelling the visa and, in my view, he was clearly right to do so. 

51. As to the extent of his compliance with visa conditions, the evidence he gave regarding his work activities is cause for concern.  He told me that he currently works three or four days a week collecting trolleys, which would appear to me to be in breach of the work restriction which he accepted had been imposed under his secondary visa and later his bridging visa. I am not satisfied that he has complied with these work restrictions given the extent of his work activity.

1. On any view of the evidence, he has clearly been in breach of condition 8516 which attached to his secondary visa. I note that the divorce order was made in October 2021. The NOICC was not served until July 2022, some eight or nine months later. This is an extensive breach and it is one which, on my findings, he was well aware of.

2. As to the aspect of hardship, I am not satisfied that the applicant will suffer any undue hardship because of the cancellation. He has given to me no satisfactory evidence on this topic. Basically, his case is that he is currently working in Australia but genuinely wants to engage in study, a case which I have rejected. I accept that cancellation of the visa will or might cause some emotional upset, but I do not give this any real weight in the overall circumstances of this case. He has taken on no significant economic obligations even though he has been working here almost from the time he arrived. I am not confident that he has given to me a full account of his current work activities but do not consider that there will be any real financial hardship in any event. The delegate was prepared to give this factor some weight against cancelling the visa but, on the evidence available to me, this was being somewhat generous to the applicant.

3. But, in any event, it matters not in the overall circumstances of this case. At the end of the day this is a simple case involving an applicant who was married in Pakistan, apparently by arrangement, they came out here together, the marriage broke down, separation followed and later a divorce.

4. I accept that all of this would have resulted in some personal upset to the applicant. He has left me with the impression that he is still coming to terms with what has occurred. On the evidence he has led, such as it is, there is no suggestion that any of this was necessarily beyond his control. He has certainly made no claim to this effect. I do not know anything about the circumstances which led to the separation, nor do I think it is a matter about which I need enquire. Although I accept there was some personal anguish flowing from this it is not a matter to which I can attribute any significant weight in his favour.

5. So far as his past and present behaviour towards the department is concerned, I have already considered this and give it some weight in favour of cancellation. 

6. The other matters considered by the delegate, namely whether any consequential cancellations will result or legal consequences, international obligations and the like, I agree with the delegate’s comments on these matters and with the weight which he has attributed to them.

7. I do not think there are any other relevant matters, apart from his current intentions, which I have already dealt with. To reiterate, I am not satisfied on the evidence led that he has any genuine intention to study in Australia for legitimate career-related reasons. I give this aspect some adverse weight.

   Summary and conclusion

8. On the evidence led, it was well open to the delegate to find that a ground for cancellation of the applicant’s secondary visa existed under s 116(1)(a) of the Act and that, at the discretionary level, for the reasons I have given, his visa should be cancelled.

9. Indeed, in the overall circumstances, I see this as an overwhelming case in which the factors which favour cancellation clearly outweigh the factors which do not.

   DECISION

10. The Tribunal thus affirms the decision under review.

    Michael Bradford
    Member