Gaurav (Migration)

[2020] AATA 5703

Gaurav (Migration) [2020] AATA 5703 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav

CASE NUMBER:  2012399

HOME AFFAIRS REFERENCE(S):          BCC 2019/6692876

MEMBER:Antonio Dronjic

DATE:22 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 22 December 2020 at 3:37pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of family unit of primary visa holder – genuine and continuing spouse or de facto relationship – domestic violence and invention order – separated but not divorced – no direct contact with wife – families trying to resolve issues but unlikely to be able to – no evidence of spousal relationship – discretion to cancel visa – no contact with department or application for bridging visa after visa cancelled – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 5F, 116

Migration Regulations 1994 (Cth), r 1.12

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 dated 28 July 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate formed the view that the applicant is no longer a member of the family unit of [Ms A] who was the primary visa holder. As the decision to grant the Subclass 485 visa to the applicant was based, wholly or partly, on a fact or circumstance that is no longer the case or that no longer exists, the delegate cancelled the visa under s.116(1)(a).

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

   Background to the cancellation of the applicant’s visa

4. The decision record of 28 July 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 21 March 2019, the applicant was granted a Subclass 485 visa to remain valid until 21 March 2021;

   ·The applicant’s visa was granted because the application met, among other criteria, the secondary criteria for the visa on the basis that he is a member of the family unit of [Ms A], as prescribed by r.1.12(2)(a).

   ·To be a member of the family unit of [Ms A] as prescribed by r. 1.12(2)(a), the applicant needs to continue to be either a spouse or a de facto partner of that person as defined respectively by ss.5F and 5CB of the Act;

   ·Information before the Department was that the applicant is no longer in a relationship with [Ms A];

   ·A Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant on 30 June 2020;

   ·The applicant responded to the NOICC on 13 July 2020, confirming inter alia that he has been living separately from his spouse since September 2019 because he had a domestic violence case registered against him. He further stated that even though he is separated from his wife, he is not formally divorced;

   ·On 28 July 2020, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 3 August 2020 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

6. On 24 November 2020, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 17 December 2020.

7. The applicant appeared before the Tribunal on 17 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(a) of the Act as the delegate concluded that he is no longer a member of the family unit of [Ms A]. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. The applicant gave evidence that he is and has been living with his brother and his family at [Address 1] since September 2019. Currently, the applicant is not employed. The last time he worked at his brother’s [business] was approximately five months ago.

10. The Tribunal enquired if the applicant applied for a bridging visa E after his Subclass 485 visa was cancelled. Mr Gaurav responded that he only applied to this Tribunal. The Tribunal noted that, according to the applicant’s movement records, he is not holding any visa. The Tribunal explained to Mr Gaurav that he must contact the Department as soon as possible and attempt to legalise his status in Australia and that failure to do so may result in his detention. The applicant undertook to contact the Department after the hearing and apply for a bridging visa E.

11. Mr Gaurav confirmed in his evidence that in response to the NOICC, he submitted a written statement dated 9 July 2020 to the Department and that everything written in that statement is true and correct.

12. The applicant’s parents live in India and, apart from his brother [Mr B] who lives in Australia and is an Australian citizen, he has no other siblings. In India, the applicant completed the equivalent of year 12 and worked at a factory for more than three years. He does not have any property in India under his name. He married [Ms A] [in] February 2017 in India. They do not have children.

13. He first arrived in Australia in September 2018 as a holder of a Student visa, being a member of the family unit of his spouse [Ms A] who was the primary visa holder. [Ms A] completed a bachelor’s degree in accounting in Australia.

14. For the first six months after arriving to Australia, Mr Gaurav and his spouse lived with the applicant’s brother and his family. In March 2019 the applicant and his spouse rented property where they lived together until 17 September 2019. After an incident of domestic violence, [Ms A] left the rented premises and applied for an intervention order against the applicant. Mr Gaurav then moved back to his brother’s residence where he continues to live until the present time.

15. Mr Gaurav stated that he did not have any direct contact with [Ms A] since September 2019. He does not know where she lives, who she is living with or whether she works or not. He stated his belief that [Ms A] did not commence divorce proceedings either in India or Australia. He obtained this information from his parents. He explained that his family in India is in contact with [Ms A]’s family.  He gave evidence that his and [Ms A]’s parents are trying to ‘resolve things between them’ and stated his opinion that they will not be able to do so.

16. Mr Gaurav initially stated in his evidence that he is still legally married to [Ms A] and that he wants to be with his wife but was prevented from communicating with her by the conditions imposed on the intervention order. Later, he changed his evidence and stated that he would like to remain in Australia in order to initiate divorce proceedings.  He explained that in India, the divorce proceedings can take up to four years and for that reason he would prefer to apply for a divorce in Australia.

17. When asked why he did not commence divorce proceedings already, Ms Gaurav stated that his family from India is still trying to ‘resolve things between him and [Ms A]’ and reiterated that he does not believe that they will be able to do so.

18. The applicant stated that the Court issued an intervention order in February 2020 after conducting a telephone conference with the parties. He gave evidence that the new court date is in May 2021 and that he would like to remain in Australia until that time. The Tribunal noted that [Ms A]’s visa will expire on 21 March 2021.

19. In his evidence, [Mr B] confirmed that he is the applicant’s brother. He is an Australian citizen, married and has two children. He works as [an Occupation 1] and operates two [businesses] in Australia. He stated that he was not aware that his brother needed to apply for a bridging visa in order to remain in Australia legally.

20. He gave evidence that in February 2017, he attended his brother’s wedding in India. [Ms A] came to Australia before the applicant and she lived at [Mr B]’s house even before his brother arrived in Australia in September 2018. [Mr B] added that he paid for [Ms A]’s student fees in Australia. He confirmed that his brother and [Ms A] resided at his house from September 2018 to March 2019.

21. [Mr B] stated in his evidence that he has had no contact with [Ms A] since September 2019 and is not aware of her whereabouts. He further stated that his parents and [Ms A]’s family in India are trying to resolve the problems between his brother and [Ms A] and expressed his opinion that they will not be able to do so. He further stated that his brother needs more time in Australia as he intends to commence divorce proceedings here.  

22. 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

23. 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?

24. 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.

25. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Class VC visa on 21 March 2019 as a dependant and a member of the family unit of the primary visa holder, [Ms A]. The applicant’s relationship with [Ms A] had ceased and the delegate concluded that the applicant ceased to be a member of the family unit of the primary visa applicant and no longer met the requirements of r.1.12 (2)(a).

26. In his written response to the NOICC the applicant confirmed that he has been living separately from his spouse since September 2019 as he had a domestic violence case registered against him. He further stated that he is not formally divorced from his wife and that he does not consider this separation to be permanent.

27. The Tribunal does not consider that, whether the applicant continues to be formally married to [Ms A], defines the existence of a spousal relationship. That is, the existence of a valid marriage is not sufficient to establish that the applicant is the spouse and a member of the family unit of the primary visa holder. Spousal relationship requires inter alia that the relationship between the parties is genuine and continuing and that there is a mutual commitment to a shared life as husband and wife. The Tribunal is not satisfied such a commitment exists.

28. At the hearing, the applicant stated he had had no contact with [Ms A] since September 2019 as he was prevented from doing so by the terms of the intervention order issued against him by the relevant Court. The applicant and [Ms A] have been living separately since September 2019.

29. The Tribunal acknowledges that the applicant’s parents and [Ms A]’s family in India are trying to resolve the problems between the applicant and [Ms A]. However, the Tribunal observes that both the applicant and his brother stated that they are not convinced that the family in India will able to do so.

30. The Tribunal is not satisfied they have a mutual commitment to a shared life as husband and wife to the exclusion of all others or that they have been living together or that they do not live separately and apart on a permanent basis.

31. Whilst the Tribunal acknowledges that there may still be a valid marriage between the applicant and [Ms A] as there is no evidence of a formal divorce, the Tribunal does not accept the applicant’s claim that the separation is only temporary and that he wishes to reconcile. At the hearing, the applicant stated his intention to commence divorce proceedings in Australia because divorce proceedings in India can take up to four years.

32. Based on the evidence before it, the Tribunal is not satisfied that the spousal relationship continues to exist. Importantly, there is no evidence of [Ms A]’s commitment to the relationship and no evidence that the parties maintain a mutual commitment to the relationship as husband and wife. On the contrary, the evidence before the Tribunal is that [Ms A] has applied and obtained an intervention order against the applicant and had no contact with him since September 2019. There must be a mutual commitment to the relationship and in the absence of any indication from [Ms A] that she has any commitment to the relationship, the Tribunal is not satisfied that the mutual commitment exists.

33. There is also no evidence that any of the aspects of a spousal relationship continue to exist in this case. There is no evidence that the couple pool their finances or have joint assets or liabilities. There is no evidence that they maintain a joint household or have joint responsibilities for any children. There is no evidence that they plan and undertake joint social activities or continue to represent themselves to others as being in a committed spousal relationship.

34. Having regard to the information provided to the Department about the breakdown of the relationship, as set out in the primary decision record, and in the absence of any probative evidence about the mutual commitment to this relationship, the Tribunal finds that the spousal relationship between the applicant and his wife has ceased, despite the ongoing existence of the formal marriage. The Tribunal finds that the applicant is no longer in a spousal or de facto relationship with [Ms A]. The Tribunal finds that there is no longer a mutual commitment to a shared life as husband and wife to the exclusion of all others between the applicant and [Ms A]. The Tribunal finds that the applicant is not a spouse and no longer a member of [Ms A]’s family unit.

35. The Tribunal finds that the applicant was granted the visa on the basis of being a spouse and a member of the family unit of [Ms A]. The Tribunal finds that this fact or circumstance no longer exists. The Tribunal finds 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 that no longer exists. The Tribunal finds that there are grounds to cancel the visa under s.116(1)(a) of the Act.

36. For these reasons, the Tribunal finds 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 power to cancel the visa should be exercised.

    Consideration of discretion

37. 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’.

38. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]    See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

39. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

40. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a specified period. The applicant was granted the visa as a secondary applicant. The purpose of that visa and of the applicant’s stay in Australia was to enable the applicant to remain with his spouse. However, the Tribunal has found that the relationship is no longer in existence. The applicant is no longer in a spousal relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of his visa because he is no longer in a relationship with the primary visa holder. The Tribunal does not consider that there is a compelling need for the applicant to remain in Australia.

41. The Tribunal gives significant weight to this consideration in favour of the visa cancellation.

    The extent of compliance with visa conditions

42. The Tribunal notes that the applicant currently does not hold any visa that would enable him to remain in Australia lawfully. While the Tribunal accepts that the applicant was unaware that he needed to apply for a bridging visa E in order to legalise his status in Australia, the fact remains that he has been living illegally in Australia since July 2020.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

43. In his response to the NOICC, the applicant claims that the visa cancellation would have a negative effect on his relationship, his visa history and any future visa applications. At the hearing, the applicant gave evidence that he would like to remain in Australia so he can commence divorce proceedings.

44. The Tribunal does not accept that the applicant hopes to re-establish his relationship with [Ms A]. The Tribunal is not satisfied that the future of the marriage would depend on the applicant’s presence in Australia.

45. The Tribunal accepts that the applicant has a close relationship with his brother and his family, and it accepts that some hardship would be caused by the cancellation. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently.

    Circumstances in which ground of cancellation arose, if cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence

1. The ground for cancellation arises because the applicant’s relationship with his spouse has broken down. In September 2019, [Ms A] applied for an intervention order. According to the applicant’s oral evidence, in February 2020, after conducting a telephone hearing, the Court granted the intervention order. From September 2019, the applicant and [Ms A] are no longer living together and have no direct contact.

   Past and present conduct of the visa holder towards the Department

2. As previously noted, the applicant has been living in Australia illegally since 28 July 2020. He has failed to contact the Department and legalise his status in Australia. The Tribunal accepts that he was unaware that he had to apply for a bridging visa E in order to legalise his status in Australia. The applicant mistakenly believed that the review application to this Tribunal enabled him to remain in Australia legally.

   Whether there would be consequential cancellations under s.140

3. There are no consequential cancellations under s.140.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

4. If the applicant’s visa remains cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also be subject to an exclusion period in relation to future visa applications.

5. The Tribunal is unable to make findings as to whether the applicant will be affected by the public interest criterion (PIC) 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by the PIC 4014, that is the intended consequence of the legislation.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

6. There are no children who would be affected by the cancellation.

7. The applicant does not claim that Australia’s non-refoulement obligations arise in his case and the Tribunal finds that international obligations would not be breached by the cancellation.

8. Having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

   Antonio Dronjic
   Member