Dharmender Singh (Migration)

Dharmender Singh (Migration) [2021] AATA 3104 (1 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dharmender Singh
CASE NUMBER:  2001848
HOME AFFAIRS REFERENCE(S):          BCC2019/4152299
MEMBER:Stephen Conwell
DATE:1 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 01 July 2021 at 10:03pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – no reason to hold the dependant Student visa – applicant had ceased to be a member of that family unit – applicant’s relationship with his spouse had broken down – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 116, 360
Migration Regulations 1994 (Cth), r 1.12
CASES
MIMA v Zhang (1999) 84 FCR 258

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 January 2020 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).
The applicant, Mr Dharmender Singh was granted a Student (TU 500) visa on 16 May 2019 under the secondary family criteria by reason of him being a member of Ms. Komal Sharma’s family unit at the time of the grant. The delegate cancelled the visa under s.116(1)(a) of the Act, because as of the date of cancellation, the applicant had ceased to be a member of that family unit. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by his registered migration agent (representative). The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone.
The applicant was invited under s.360 of the Act to participate in a telephone hearing before the Tribunal on 29 June 2021 at 11am. The invitation was sent by email to the applicant’s representative at their last known contact details. No response to the invitation was received by the Tribunal. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. The applicant did not respond to the SMS messages.
However the applicant answered the Tribunal’s telephone call at the time of the scheduled hearing and agreed for the hearing to proceed at 11.30am on the scheduled day. The applicant indicated that his representative was not available at this time however he raised no objection as to the hearing proceeding by telephone and without his representative in attendance.
The applicant participated in the hearing by telephone on 29 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The interpreter also attended the hearing by telephone.
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
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, 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?
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.
The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. Although considering a differently worded version of s.116(1)(a), the reasoning of the Court provides some guidance. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]).
Particulars of the ground for cancellation
On 16 May 2019, the applicant was granted a Student (subclass 500) visa as a dependant of Ms. Komal Sharma, the primary visa holder. The Student visa was granted to the applicant because the delegate was satisfied that the applicant was a member of Ms. Sharma’s family unit in accordance with the Act and the Migration Regulations 1994 (Regulations).
Paragraph (2)(a) of regulation 1.12 of Regulations provides as follows:
(2)A person is a member of the family unit of another person (the family head) if the person:
(a)is a spouse or de facto partner of the family head; or
To be a member of the family unit of Ms. Sharma as prescribed by reg 1.12(2)(a), the applicant needed to continue to be either a spouse or de-facto partner of that person as defined respectively by sections 5F and 5CB of the Act, which state (in part):
s.5F ‘Spouse’
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis. ...]
s.5CB ‘De facto partner’
De facto partners
(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b)     the relationship between them is genuine and continuing; and
(c)     they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis; and
(d)   they are not related by family (see subsection (4)).
        [...]
The applicant was granted the secondary visa on the basis that he was a member of the family unit of the primary visa holder, Ms. Sharma.
According to the decision record the Department of Home Affairs (Department) received information on 14 August 2019 that the applicant’s relationship with his spouse had broken down and the couple were no longer living together.
On 24 December 2019 the applicant was sent a Notice of Intention to Consider Cancellation of visa (NOICC). The applicant did not provide a written response to the NOICC, nor is there evidence of him contacting the Department regarding the NOICC . At the hearing the applicant claimed that his representative had responded to the NOICC however that response was late. The applicant offered no evidence of this claim. The Tribunal notes that the delegate’s decision was written almost four weeks after the NOICC was issued and at the time of the decision, no response had been received by the Department. The Tribunal therefore gives no weight to this claim.
The applicant’s oral testimony at hearing provided the following information on the applicant’s relationship and visa history:
·   the applicant and Ms Sharma married in India before coming to Australia;
·   the couple separated in August 2019, although the applicant has made several attempts at reconciliation. However there has been no reconciliation and the relationship has irretrievably broken down;
·   the applicant lodged a new Student visa as the primary applicant on 30 September 2019 and declared in this application his relationship status as being ‘separated’ The applicant said that this application was subsequently refused.
The Tribunal is satisfied on the basis of aforementioned material and the applicant’s oral evidence that the applicant’s relationship with Ms Sharma had broken down by August 2019 and consequently the applicant had from that time, ceased to be a member of Ms Sharma’s family unit as prescribed by reg 1.12(2)(a).
Based on this information, the Tribunal is satisfied there are grounds for cancelling the applicant’s visa under s 116(1)(a) of the Act because it appeared that at the time of the delegate’s decision the applicant and Ms Sharma were now separated and he was no longer a member of her family unit.
The Tribunal has carefully considered the applicant’s submissions and the circumstances of the parties as indicated in the applicant’s evidence and on the papers before it, with a view to whether the characteristics of the relationship satisfy the requirements of s.5F. The Tribunal accepts that the parties were validly married according to Indian custom and law. However in light of the evidence before it, the Tribunal is satisfied that, at the time of the delegate’s decision, the applicant and Ms Sharma no longer have a mutual commitment to a shared life as a married couple; that the couple no longer have a relationship that is genuine and continuing; and that since August 2019 they have lived separately and apart on a permanent basis.
The Tribunal is satisfied the applicant was not a member of Ms Sharma’s family unit at the time of the delegate’s decision; that the circumstances of the relationship do not satisfy the requirements of s.5F, and therefore the applicant does not meet the r.1.12(2)(a).
The applicant’s visa was granted on the secondary family criteria by reason of the applicant being a member of Ms Sharma’s family unit at the time of the grant, Ms Sharma having satisfied the primary criteria in cl.500.2 of the Regulations. Given that the Tribunal is satisfied the applicant is no longer a member of Ms Sharma’s family unit as defined, 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
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’.
Purpose of applicant’s travel to and stay in Australia
The applicant was granted a Student (TU 500) visa as a dependant (spouse) for the purpose of being able to accompany and remain in Australia temporarily with the primary visa holder, Ms Sharma, his spouse at the time .
The Tribunal acknowledges that following the separation from Ms Sharma the applicant applied for a Student visa in his own name. According to the applicant’s evidence, his application was unsuccessful.
For the purpose of this merits review the Tribunal is satisfied that the applicant applied for, and was granted, a secondary Student visa travel to and stay in Australia when he was a member of Ms Sharma’s family unit.
As the applicant has ceased to be a member of Ms Sharma’s family unit, the Tribunal considers that the purpose for which the visa was granted has ended and there is no legitimate immigration reason for the applicant to continue to hold the dependant Student visa.
The Tribunal affords this consideration some weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant’s oral evidence is that he initially continued to work for some weeks following the relationship breakdown, which may have been in breach of his visa status. However the Department granted him work rights with his current Bridging visa. Therefore for the purposes of this review the Tribunal is prepared to give this consideration neutral weight against cancelling the applicant’s visa.
The degree of hardship that may be caused to the visa holder and any family members
At the hearing the applicant stated that he needs to continue working in order to meet his living expenses in Australia. Apart from speaking generally of his continued attempts to reconcile with Ms Sharma, he did not mention any particular hardship that may arise as a result of his visa being cancelled.
The Tribunal has considered the generalised claims made by the applicant addressing this factor however it is not satisfied they demonstrate hardship of such a degree that the Tribunal should exercise the discretion not to cancel the visa.
The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of his family a degree of emotional or psychological hardship that would weigh in favour of exercising its discretion to set aside cancellation of the visa. The Tribunal accordingly gives these factors neutral weight for this factor.
The circumstances in which the ground for cancellation arose
The circumstances in which the ground for cancellation arose are described above. The applicant’s visa was granted on the secondary family criteria by reason of the applicant being a member of Ms Sharma’s family unit at the time of the grant - Ms Sharma being the primary visa holder. The Tribunal is satisfied the applicant was not a member of Ms Sharma’s family unit at the time of the delegate’s decision and the circumstances of the relationship do not satisfy the requirements of s.5F, and therefore the applicant does not meet the r.1.12(2)(a).
The Tribunal acknowledges that a marriage breakdown and separation take an emotional toll on the couples involved and their families. Nevertheless the Tribunal is not satisfied that there were extenuating circumstances beyond the applicant’s control that led to the ground for cancellation arising.
The Tribunal affords this consideration significant weight in favour of cancelling the applicant’s visa.
Past and present conduct of the visa holder towards the Department
According to the decision record, the applicant did not respond to the NOICC. The Tribunal does not accept the explanation he offered at the hearing for his failure to respond. Similarly neither the applicant nor his representative responded to the Tribunal’s invitation and SMS text messages, despite the applicant confirming that his contact details remain unchanged. The Tribunal finds this pattern of behaviour suggests that the applicant has a careless disregard towards his visa obligations whilst in Australia. The Tribunal gives this some weight in favour of cancelling the applicant’s visa.
Whether there would be consequential cancellations under s.140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s.140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Cancellation of the visa would mean that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, these are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.
whether 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
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. The applicant’s oral evidence confirmed that he and Ms Sharma have no children together. As there is no information before the Tribunal, the Tribunal gives neutral weight to this consideration for or against cancelling the visa.
Any other relevant matters
There are no other relevant matters to be considered in the applicant’s case.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. 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 500 (Student) visa.
Stephen Conwell
Member

[2021] AATA 3104

1 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies