Ediga (Migration)

[2023] AATA 4671

Ediga (Migration) [2023] AATA 4671 (15 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sudhakar Goud Ediga

REPRESENTATIVE:  Mr Nilesh Nandnan

CASE NUMBER:  2310545

HOME AFFAIRS REFERENCE(S):          BCC2021/1540033

MEMBER:Wan Shum

DATE:15 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 15 December 2023 at 2:24pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – member of family unit of primary applicant – change in circumstances – separated after visa granted and before arriving in Australia – divorce delayed by COVID pandemic – sufficiency of s 107 notice – ‘spouse’ – defined term or ordinary, dictionary meaning – primary applicant’s points test – timing of separation and applicant’s new de facto relationship – discretion to cancel visa – skilled employment and value to employer – financial and emotional hardship – mandatory legal consequences – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 46, 97, 104, 107, 109(1)
Migration Regulations 1994 (Cth), rr 1.12, 2.41, Schedule 2, cl 189.311

CASE
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that there was a failure to comply with s 104 of the Act. 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 applicant appeared before the Tribunal on 31 October 2023 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. 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

6. In this case, the applicant was included in an application for a Skilled Independent (subclass 189) visa made by Ms Savarna Sushma Vemireddy on 28 February 2019. She was the person seeking to satisfy the primary criteria for the grant of the Skilled Independent (subclass 189) visa. It was claimed that the applicant was a member of her family unit on the basis of being her spouse/de facto partner. The visas were granted on 9 January 2020. The applicant entered Australia on 4 September 2020. Subsequently, the applicant provided information that he had separated from Ms Vemireddy on 8 March 2020 and that, since then, they had been living separately and no longer maintain their “romantic” relationship. The applicant provided a copy of an application form for divorce certificate issued by the Telangana State Wake Board dated 24 March 2020 between Sudhakar Goud Ediga and Suvarna Sushma Vemireddy but explained that he had “been unable to legally divorce [his] ex-wife” due to the “uncertain Covid-19 pandemic situation” which meant that all procedures in the courts in India are delayed. The applicant claims that he started a de facto relationship with Nikitha Raman in June 2020 when they started residing together in India he departed for Australia.

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. The delegate sent a Notice of Intention to Consider Cancellation (the s 107 Notice) to the applicant on 6 January 2023. The delegate set out that the answer to a question provided on the application form regarding his relationship status with the primary applicant was no longer correct and the delegate was of the view that the applicant had failed to notify the Department of the change in his circumstances prior to being immigration cleared on 4 September 2020. After considering the response, the delegate then proceeded to cancel the applicant’s visa on 13 July 2023.

10. On review, the representative submitted that the Tribunal should exercise its discretion not to cancel the visa. Alternatively, it was argued that the Notice of Intention to Consider Cancellation (the s 107 Notice) was defective, so the Tribunal had no power to proceed. The final point raised was that there was no non-compliance in the way described in the s 107 Notice.

11. During the hearing the argument that there was no power to cancel the visa was further explored. The representative argued that the application form for this class of visa did not allow one to choose anything other than spouse or de facto partner as a relationship status which meant that the applicant could not give the answer of “separated” if that is what had occurred at some later point. However, the Tribunal put to the representative that an applicant for a visa would only be choosing between the options of spouse or de facto partner if they had already indicated on the form that there was a migrating member of the family unit. Only then would the person need to indicate what kind of relationship existed. A person who had separated or did not have a spouse or de facto partner would not be claiming to have a member of the family unit so it was not an available option to select separated in the drop-down list (or other types of marital status such as divorced or widowed) unlike on other forms. This was confirmed following the hearing, with a screenshot of the relevant section of the form provided by the representative showing the following options: adopted child; child; grand child; spouse/de facto partner; step child. These are the types of relationships which are listed in the definition of “member of the family unit” in the Act and Regulations.

12. It was argued that the term “spouse” on the application form should be given its general or dictionary meaning.

13. The Tribunal agreed to allow further time for the representative to develop his arguments after the hearing and received submissions which have been summarised below.

14. In respect of the argument that there was no power to cancel, the s 107 Notice was said to be defective because it fails to provide particulars of what "answer" and which "question" offends s 104. It was argued that the notice did not identify "an" answer to "a" question that was incorrect, referring to the alleged failure to notify of a change of circumstances as being identified by the following from the delegate’s decision:

    "Based on this, it appears an answer to a question you provided in the application form regarding your relationship status with the primary applicant has ceased to be correct and that you have failed to notify the Department of the change in your circumstances prior to being immigration cleared on 4 September 2020."

15. It was submitted that the s 107 Notice was defective as it fails to comply with the requirements of s 107 and cannot ground any lawful cancellation such that the cancellation must be set aside.

16. The s 107 Notice sets out the following section of the form:

    On pages 3, 4, and 5 of the application form the following answers were provided (in part)

    (in italics):

    Migrating members of the family unit

    Are there any migrating family members of the family unit included in this application? Yes

    Migrating member of the family unit

    Relationship to the primary applicant: Spouse/De Facto Partner

    Passport details

    Enter the following details as they appear in the family member’s personal passport

    Family name: Ediga

    Given name: Sudhakar Goud

    Sex: Male

    Date of birth: [Date]

    Passport number: [Number]

    […]

    Place of birth

    Town/city: Pesalabandra

    State /province: Andhra Pradesh

    Country of birth: India

    Relationship status

    Relationship status: Married

    Date of marriage: 19 August 2014

17. The s 107 Notice then sets out cl 189.311 which is the criterion the applicant was found to have met as a ‘member of a family unit’ of Savarna Sushma Vemireddy followed by the definition of spouse in s 5F of the Act. Then at page 4 of the Notice, the delegate explains that there is information that the applicant’s relationship with Savarna Sushma Vemireddy ceased prior to his first entry into Australia holding a Skilled Independent (subclass 189) visa on 4 September 2020. The relevant information was identified as information provided by the applicant for Ms Nikitha Raman’s COVID-19 travel exemption application, specifically an application form for divorce certificate issued by the Telangana State Wake Board dated 24 March 2020 between the applicant and Suvarna Sushma Vemireddy and extracts from his Statutory declaration dated 24 May 2021 in which he stated that he had separated from his ex-wife Savarna Sushma Vemireddy on 8 March 2020 and that they had been living separately and no longer maintain their “romantic relationship” but that due to uncertain Covid-19 pandemic situation, all procedures in the courts in India are delayed so he has been unable to legally divorce his ex-wife.

18. As can be seen in the paragraph quoted above from the s 107 Notice, the delegate stated that the change of circumstance was that the applicant’s “relationship status” ceased to be correct and, as submitted, did not identify a specific question and an answer in the s 107 Notice. Rather, the delegate incorporated the entire section of the form under “Migrating members of the family unit”. In the Tribunal’s view, the wording of s 104 is not restricted to a singular question or singular answer given on the form but would extend to more than one question or one response where multiple questions need to be answered to meet the criteria to which the questions in that section of the form are aimed. In this case, there are multiple questions and responses to what could be viewed as a single question of whether a person is a member of the family unit of another. The Tribunal considers that this arises because the definition of member of the family unit in the Act and Regulations has multiple ways in which it could be met.

19. In identifying the circumstances that have changed in this case, which was said to be a failure to comply with s 104, the Tribunal is of the view that the whole of the s 107 Notice should be read in its entirety and not limited to the paragraph identified in the submissions and copied above. In this case, the delegate had included on page 2 of the s 107 Notice a copy of the section of the visa application form “migrating member of the family unit” in which a series of questions and the responses given to these questions are set out. As the form was completed electronically, the Tribunal understands that the question “relationship to the primary applicant” only requires a response where it is claimed that there is a migrating member of the family unit. Reading the s 107 Notice as a whole, the delegate had particularised the change of circumstance in this case as the applicant no longer being a “member of the family unit” of Ms Vemireddy once they separated as he was not a child or spouse or de facto partner of the person who satisfied the primary criteria for the grant of the Subclass 189 visa.

20. This is significant because only a person who was found to be a member of the family unit of the person who satisfied the primary criteria for the grant of the Subclass 189 visa, who in this case was Ms Vemireddy, would be found to satisfy cl 189.311 which is the relevant criterion which had to be met. Given this, the changed circumstance is that there is no longer any “relationship to the primary applicant” once the person has separated from the primary applicant. In other words, the circumstance that had changed was the applicant’s relationship with the primary applicant and was not tied to whether he was officially divorced. The obligation on the applicant to inform the Department that he was no longer the spouse of Ms Vemireddy arose when they separated and he began living with Ms Nikitha in a de facto relationship.

21. In this case, reading the s 107 Notice as a whole, the Tribunal considers that the possible non-compliance identified by the delegate in the s 107 Notice as being a change in circumstances was that the applicant was no longer a member of the family unit of Ms Vemireddy prior to his entry into Australia. The Tribunal does not consider that the s 107 Notice was defective as, read as a whole, the answer to the question that was no longer correct was the “answers” originally given to the questions in the section “migrating member of the family unit” which included “relationship to the primary applicant” to which the answer given was “spouse/de facto partner”. In terms of the applicant’s ability to respond to the possible non-compliance, the Tribunal considers that the delegate had sufficiently put the applicant on notice of the issue to be addressed, which was the view that the applicant was no longer a member of the family unit of Ms Vemireddy as they were no longer spouses as defined in the Act and Regulations.

22. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

23. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 104 because an answer to a question provided on the application form regarding his relationship status with the primary applicant was no longer correct and the delegate was of the view that the applicant had failed to notify the Department of the change in his circumstances prior to being immigration cleared on 4 September 2020.

24. The relevant section of the form and the information which revealed possible non-compliance was fully set out in the s 107 Notice.

25. The information was:

    ·     a copy of an application form for divorce certificate issued by the Telangana State Wake Board dated 24 March 2020 between himself and Ms Vemireddy;

    ·     statutory declaration dated 24 May 2021 in which he states the following (in part):

    I separated from my ex-wife Savarna Sushma Vemireddy on 8 March 2020 due to our irreconcilable differences. Since then, we have been living separately and no longer maintain our romantic relationship.

    However due to uncertain Covid-19 pandemic situation, all procedures in the courts in India are delayed. As a result, I have been unable to legally divorce my ex-wife.

    My ex-wife is also residing in India while I am in Australia which delays the divorce process even further.

    After the separation, I have started a de facto relationship with Nikitha Raman in June 2020 when we started residing together in India until September 2020.

    I returned to Australia in September 2020 after receiving an employment offer.

26. It was submitted that there was no power to cancel because all of the questions identified in the s 107 Notice were answered correctly at the time of application and remained correct until after the time of entry into Australia. This argument was based on the applicant still being legally married to Ms Vemireddy when he entered Australia as, at that point in time, there had only been an application for divorce which it is claimed has still not been granted by the Courts in India and that the general understanding or dictionary meaning of these terms should prevail over the defined terms under the migration legislation. In support of this argument, it was submitted that the questions answered in any form must be given their natural, ordinary or literal meaning as the form was not a statute requiring statutory interpretation and set out a few dictionary definitions of "spouse" copied below:

    *Definitions from Oxford Languages

    Spouse:

    a husband or wife, considered in relation to their partner.

    *Merriem-Webster Dictionary:

    Spouse:

    : married person : HUSBAND, WIFE

    Dictionary Spouse:

    Someone's spouse is the person they are married to. >

    In written submissions received after the hearing, it was submitted that there was no answer that needs correction because the applicant remained the “spouse” of Ms Vemireddy as understood in dictionary/general usage of the term because they were not divorced, such that s 104 is not engaged which means that nothing is notifiable and there can be no non-compliance under s 108.

27. While the form is not a statute, the Tribunal is of the view that, where there are questions on the prescribed application form that use defined terms from the Act and Regulations, it is the definitions used in the migration legislation and not the dictionary definitions where these differ. This is because an applicant for a visa must identify the Class of Visa that person is seeking and be assessed against the visa criteria for that Class of Visa in order for the visa to be granted. The relevant application form for a specified class of visa is prescribed under the Regulations for the purposes of s 46 of the Act (see meaning of “application form” under s 97) and it would not be a valid application for the Class of visa if not made on the prescribed form. In this case, the prescribed form for a Class SI visa is Form 1393 (Internet) and the Class of visa includes Subclass 189. Part 189 of Schedule 2 to the Regulations is the relevant provision which sets out the criteria to be met in order to be granted the visa. Under the subheading in respect of the primary criteria, it states that the primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for this visa need satisfy only the secondary criteria in Division 189.3. Under Division 189.3, the criterion which needed to be satisfied by the applicant was cl 189.311 as he did not meet the primary criteria. This criterion requires that the applicant is a member of the family unit of a person who was granted a Subclass 189 visa on the basis of having satisfied the primary criteria. The definition of “member of the family unit” under the Act refers to the meaning given under the Regulation, which is reg 1.12 which encompasses a number of different types of relationship other than spouse, such as “child” and “dependent child” which in turn may differ to the dictionary definitions and is not a term of ordinary usage.

28. Given the use of the term “member of the family unit” in the form, and the relationship types being limited to “spouse” and “de facto partner”, “child”, “dependent child”, “adopted child” and “step child”, the Tribunal is of the view that it is the defined term in the migration legislation and not the ordinary or dictionary definition that the form requires an answer for. This means that any possible contravention of s 104 requires consideration of the defined terms under the legislation. In addition, having regard to the entire visa scheme and in particular Subdivision C of Division 3 of the Act, the Tribunal’s view is that the requirement to notify of a change of circumstances exists regardless of whether the person has actual knowledge of the definition of spouse under the migration law.

1. In addition while it is claimed the applicant remains married under Indian law, it does not appear that his actions are those of a person who conducts themselves as if they are still married, having filed for divorce on 26 March 2020 and then entered into a de facto relationship with Miss Raman since June 2020. The applicant claims that the divorce has still not been processed by the Courts in India but has provided a copy of his divorce from the Federal Circuit and Family Court dated 2 February 2022.

2. Although the applicant claimed that the visa application was lodged by Mr Vemireddy and he was involved in the process, the Tribunal is not persuaded that the applicant believed he remained entitled to the visa as he would have been aware that he was not the primary applicant and, while he claims to have contributed to the score, he was relying upon Mr Vemireddy to satisfy the points test as the primary applicant.

3. In respect of the claim that the applicant believed that he remained the spouse of Ms Vemireddy when he entered Australia because they were still legally married, the Tribunal has doubts about this as the answers given with the application for a visa to support a claim that a person is a “member of the family unit” of another, referred to as the family head,  would generally require some form of supporting evidence to assess whether a person meets the visa criteria. It would not be sufficient to make a declaration that a person is a spouse or de facto partner of another person without some form of evidence. In any case, the Tribunal does not accept that the applicant believed he remained her spouse in circumstances where he had already filed for divorce from Ms Vemireddy and claims to have been living with Miss Raman in a de facto relationship at least 3 months prior to his entry to Australia. This is regardless of the divorce having not been officially granted by the Courts in India.

4. It was submitted that the visa would not have been granted without him as Ms Vemireddy needed more points to achieve the pass mark and/or invitation mark for the points test and as her spouse he contributed 10 points, there is no dispute that he was only granted the visa because he was found to be Ms Vemireddy’s spouse. Given this, it seems highly unlikely that he was of the belief that he was still entitled to the Subclass 189 visa when he entered Australia as the relationship with Ms Vemireddy had ceased prior to September 2020.

5. When the Tribunal discussed the sequence of events with the applicant regarding his relationship with Ms Vemireddy, he claimed at the hearing that he and Ms Vemireddy married in August 2014 and had been living together in his family home since they were married. He said after the visa was granted, they had originally booked flights to Australia for 8 April 2020, but arguments and misunderstandings arose between them. He initially said that they had decided to separate in March 2020, which was when he took her back to her family home, and that after this they only communicated with each other through a mediator. But he also claimed at the hearing that he was still trying to reconcile with Ms Vemireddy in March 2020 and that it had been suggested by her family that instigating a divorce might lead her to change her mind. However, having examined the rental agreement provided by the applicant when he was supporting Ms Raman’s application for a COVID-19 travel exemption, it is apparent that even though he claims they did not start to live together until June 2020, the terms of the agreement indicate that he and Ms Raman had entered into the lease as co-tenants from 3 February 2020 and the rental period was to be 16 months from that date. This is prior to his claim to have separated from Ms Vemireddy and lodged the application for divorce and, noting there are only specific circumstances under which a divorce application can be made,  the Tribunal has doubts about his claims that he and Ms Vemireddy were still trying to reconcile in the 3 to 4 month period after the visa was granted as claimed at the hearing. The applicant claims that he felt depressed after splitting up with Ms Vemireddy and that this meant that he did not think about what is right or wrong and was not conscious of what was happening around him.

6. Having considered all of the evidence, it seems likely that he and Ms Vemireddy would have separated prior to 8 March 2020. The Tribunal is unable to determine the date with any further precision on the evidence before it, but nevertheless, it is clear that they were no longer spouses as defined in the Act and Regulations prior to 4 September 2020 when he entered Australia.  This is a change of circumstance as he was no longer a member of Ms Vemireddy’s family unit. The Tribunal finds that the applicant’s circumstances changed so that an answer to a question on his application form is incorrect in the new circumstances and the applicant failed to notify of this prior to his entry into Australia.

7. For these reasons, the Tribunal finds that there was non-compliance with s 104 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

8. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

9. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

   ·     the correct information

   ·     the content of the genuine document (if any)

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

   ·     the circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

   ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

   ·     any other instances of non-compliance by the visa holder known to the Minister

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

10. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

11. The submissions on this point are that, if there is a power to cancel under s 109 (which is refuted), prescribed circumstances weigh in favour of the applicant and the Tribunal must set aside the cancellation. It was submitted that the applicant relies on his written and oral submissions, and his testimony at the AAT hearing and that the cancellation must be set aside having proper regard to the prescribed circumstances and that “any other decision would be so unreasonable that no reasonable decision-maker would make it, and a decision not to cancel cancellation is outside of the Tribunal's decisional freedom”.

12. The relevant matters under the prescribed circumstances were summarised and are addressed below.

13. The submissions refer to the following factors:

    ·extensive period of residence in Australia

    ·no bogus documents

    ·no false or misleading information

    ·no aggrieved party

    ·primary applicant’s “PR” (which the Tribunal understands as referring to her permanent visa) not possible without points contribution from applicant

    ·applicant is a skilled migrant

    ·applicant holds a skills assessment

    ·applicant has an occupation in demand

    ·employment related to high-priority sector - health

    ·legal consequence of cancellation is a 3 year exclusion

    ·legal consequence of cancellation is extreme financial hardship

    ·strong continuing ties with Australian citizen brother and sister-in-law

    ·cancellation contrary to the best interests of Australian citizen children (two nephews).

14. The Tribunal has addressed each of these below.

15. Had the Department been notified of the spouse relationship with Ms Vemireddy ceasing, it is likely that the Subclass 189 visa would have been cancelled prior to the applicant’s entry into Australia as he was only granted the visa as a member of her family unit. While it was argued that Ms Vemireddy’s visa would not have been granted either if he had not been included as an applicant because the points test requirement would not have been satisfied on her own, in the Tribunal’s view is it clear that neither party would have been granted the visa if their claimed relationship had already ceased. The Tribunal is not persuaded that this is a reason for not cancelling his visa.

16. The applicant has apologised for not complying with s 104 and that there was no intention to mislead the Department. It was claimed that he was depressed after his marriage with Ms Vemireddy ended, and while the Tribunal has taken this into account, ultimately, he took advantage of the situation to enter Australia on a visa that he would not have been granted but for his claim to be her spouse. The circumstances in which the non-compliance occurred according to the applicant is of ignorance due to “the stress of arriving in Australia during the COVID-19 pandemic and the urgency to establish financial stability led to oversight” and because of the “Legal Situation in India”, where he claims that “the clear distinction between married and divorced [in India], without provisions for separation, contributed to the assumption that details should be updated post- finalization of the divorce.” Having reflected on the sequence of events, the Tribunal is not persuaded that the applicant was of the view that he remained entitled to the visa when his claims are that his relationship with Ms Vemireddy had ceased at least several months prior to his entry into Australia. Regardless of whether he understood that there was a difference between separation and divorce, the applicant had already applied for divorce with the India Courts and commenced living in a partner relationship with another person. It seems that his desire to enter into Australia was greater than his concerns of being honest that his circumstances had changed since the application was made. It further notes that judicial separation is possible under the Hindu Marriage Act 1955.

17. Currently the applicant is living in Australia with his de facto partner, Ms Raman who he supported to obtain a travel exemption with the information referred to above. The applicant first arrived in Australia in September 2020 so has lived in Australia for just over 3 years.

18. It is submitted that the applicant is a skilled migrant and has been employed in an occupation in demand in the health sector. The applicant has provided evidence that he is employed as the Head of E-Commerce for a small business, Powerhouse Supplements, since 1 August 2022 on a salary of $120,000 and that in financial year ending 30 June 2011, he was employed as a Management Accountant by The Trustee for Barnes Trust. The Tribunal accepts that the Australian Computer Society had assessed the applicant’s skills and qualifications which were recognised as suitable for migration and that he is gainfully employed. The Tribunal has taken into account the statement made by the Director of Powerhouse Supplements where he expresses the view that the applicant’s employment is critical to the company’s growth and considers the applicant to be an asset to the business and difficult to replace. The Tribunal has taken into account his skills and employment as reasons supporting a decision not to cancel the visa.

19. The applicant referred in his statements to having purchased a car, TV, and washing machine and it would make him sad to sell them because they are not just things; but a part of his life and the journey of building a home in a new place but does not consider the purchase of these items and emotions associated with their purchase are reasons to not cancel the visa. The Tribunal has taken into account his clam that it would be financially devastating and jeopardise his career but does not consider that there is any evidence which supports that there would be this kind of impact or extreme financial hardship would arise. The applicant’s evidence is that prior to coming to Australia, he had worked for Google in India and the skills assessment from the Australian Computer Society of 30 January 2019 found him to be suitable for migration as a software engineer based on his qualifications and employment experience with Shreshta Info Global Services Pvt Ltd. The applicant has had experience working in India and Australia and should be in a position to obtain work on his return to India based on his skills and qualifications. There is no evidence before the Tribunal that he would be unable to find suitable work in India if he was to return. In terms of his living situation, the Tribunal further notes that he was living with his father in Hyderabad prior to coming to Australia and his mother is on a visitor visa, so still has strong familial ties in India.

20. The Tribunal accepts that the applicant has strong familial ties in Australia as his brother and his brother’s family who are Australian citizens live here and that he is very close to them. The Tribunal has considered the letters from his brother and sister-in-law in which they state that they are close and spend time together and also the letter from his mother in which she states that she is happy that her sons are living here together. The Tribunal accepts that they are close and spend time together on a regular basis and that he has a strong bond with his two nephews which may be impacted if his visa was cancelled and he was required to leave Australia. It was also claimed that his mother would be heart broken and that there was no one to look after him in India if he was to return. However, the mother holds a visitor visa so is not entitled to remain in Australia on a permanent basis. The applicant lived with his brother and family for 6 months and then at Church Street, Parramatta where he claims to have lived with Ms Raman after she arrived in Australia. She is the holder of a temporary visa and is not currently entitled to remain in Australia on a permanent basis. The Tribunal accepts that they had hoped to remain in Australia but does not consider that this outweighs the reasons to cancel the visa.

21. The applicant referred in his statutory declaration to contributing to society by making monthly donations to the Australia Red Cross since December 2020 and the McGrath Foundation since 2023. The Tribunal has taken into account the applicant’s claimed contribution to Australian society and considers these to be minor in nature.

22. There are a number of impacts of a visa cancellation which include the s 48 bar, PIC 4013 criterion which imposes a 3-year exclusion period if a person has previously had their visa cancelled as a mandatory legal consequence to a cancellation decision. The Tribunal has taken into account that if the applicant’s visa remains cancelled and if he does not hold any other visa, he would become an unlawful non-citizen which may lead to detention and removal from Australia. It has also taken into account the exclusion period in relation to some visas and that the applicant would have limited opportunities to make visa applications onshore, as well as the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia. It is also likely that a cancellation would be a relevant consideration in any possible future visa applications he and/or Ms Raman may wish to make. The Tribunal has considered the consequences outlined and is of the view that they are legitimate consequences imposed to deter others from failing to notify of a change of circumstance and entering Australia on a visa to which he would not have been entitled. It notes that the exclusion period is for 3 years, so if he wishes to return to Australia, he may be eligible to do so after that period. The Tribunal considers these consequences to be legitimate and appropriate in these circumstances.

23. There are no visas cancelled as a consequence under s 140.

24. It was submitted that there are no other instances of non-compliance with the Act and the Tribunal is not aware of any information which reflects that the applicant failed to comply with the conditions of the visas he previously held. The Tribunal acknowledges that the visa application was lodged over 4 years ago and the visa was granted in January 2020 and that he entered Australian in September 2020. The Tribunal acknowledges that the applicant has lived in Australia for 3 years but does not consider that this is an extensive period of residency in Australia.

25. In terms of whether there are children whose interests would be affected, the Tribunal accepts that the applicant has 2 nephews who are Australian citizens but as he is not the parents of the children, the Tribunal does not consider that this amounts to being contrary to the best interests of the child. The Tribunal acknowledges that he has a close bond with them. The Tribunal has taken into account this relationship but considers the impact on the children who are both young (under 4 years of age) would not be contrary to their best interests as there is no suggestion that their parents would need to be separated from them and the applicant will be able to maintain a relationship with them from outside Australia.

26. There is nothing before the Tribunal to indicate that cancellation of the visa would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations. There is no evidence, and the applicant does not explicitly claim, that Australia has protection obligations towards him. There is nothing in the applicant’s circumstances which prevents claims of harm being canvassed in a protection visa application.

27. The Tribunal has considered the degree of hardship that may be caused to the applicant and accepts that he wishes to remain in Australia for his career and to be near his brother and his brother’s family as well as live with Ms Raman who is currently holding a temporary visa. Considering the matters raised, the Tribunal accepts that the cancellation of the visa would cause a degree of hardship to the applicant.

    Summary

28. sThe Tribunal finds that there was a breach of s 104 of the Act in the way described in the s 107 Notice and that there are grounds for cancelling the visa. In considering whether the visa should be cancelled, the Tribunal has given careful consideration to the applicant’s circumstances and the reasons given for why the visa should not be cancelled, which includes the applicant’s life in Australia and his job and skills.

29. Against these considerations, the Tribunal places substantial weight on the fact that the applicant entered Australia without earlier notifying the Department that he was no longer a member of the family unit of Ms Vemireddy. While it is claimed that she would not have been granted the visa on her own skills and qualifications, there is no suggestion that the applicant would have met the primary criteria for the permanent visa himself. It appears that he is now in a de facto relationship with a person who is currently in Australia, but she holds a temporary visa and is not an Australian citizen or permanent resident. The Tribunal has taken in account the possible impact if he is removed from Australia on his brother and sister-in-law who claim that they and their children would be devastated. It was also claimed that his mother would be heart broken and that there was no one to look after him in India if he was to return. However, the mother holds a visitor visa so is not entitled to remain in Australia on a permanent basis.

1. Having regard to the claimed possible hardship and difficulties that may be faced by the applicant, the Tribunal does not consider that the 3 years spent in Australia, his skills and employment, his brother’s family being here and his contribution to others outweighs his failure to notify of the end of his relationship with Ms Vemireddy. It is claimed that it was a mistake based on a misunderstanding because they were still legally married. However, having considered the sequence of events and evidence before it, the Tribunal has formed the view that the applicant did not notify this change deliberately, knowing that it was likely that his visa would be cancelled and he would not be able to enter Australia.

   Conclusion

2. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, the Tribunal concludes that the visa should be cancelled.

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

   Wan Shum
   Member

   
   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   104Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)Subsection (1) applies despite the grant of any visa.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.