Gautam (Migration)

[2024] AATA 3379

Gautam (Migration) [2024] AATA 3379 (11 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amit Gautam

REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)

CASE NUMBER:  2425533

HOME AFFAIRS REFERENCE(S):          BCC2023/3651498

MEMBER:Kira Raif

DATE:11 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

Statement made on 11 September 2024 at 12:10pm

CATCHWORDS

MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – relationship ceased – compelling need – employment in the disability and aged sectors – impact on new marriage – emotional and financial family hardship – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 26 July 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nepal, born in December 1993. He was granted a Skilled visa in June 2022 on the basis of being a de facto partner, and a member of the family unit, of the primary visa applicant, Mr M. In July 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there are grounds for cancelling the visa under s. 116, as the applicant’s relationship with Mr M ended. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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(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.

5. 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.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled visa in June 2022 on the basis of being a de facto partner, and a member of the family unit of Mr M. In December 2022 the Department was informed that the applicant’s relationship with Mr M ended. In his response to the NOICC the applicant confirmed that the relationship with Mr M had ended. In oral evidence the applicant also confirmed that the relationship had ended and he states that he was the one who informed the Department about the relationship ending.

7. Having regard to the applicant’s evidence, the Tribunal finds that the applicant is no longer a spouse or de facto partner of Mr M. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’ or that he met the primary criteria for visa grant.

8. The Tribunal finds that the applicant is no longer a member of the family unit of the primary visa applicant. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of him being a member of the family unit of Mr M and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(a) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

10. 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’.

    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

11. 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 partner. However, the applicant confirms that the relationship is no longer in existence. The applicant is no longer in a de facto relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of his travel to Australia because he is no longer in a relationship with the primary visa holder.

12. The applicant states that he has been living in Australia for seven years and wants to remain in Australia. He refers to his employment in Australia and the contribution he makes through employment in the disability and aged sectors. The applicant states that he is a skilled migrant and has completed Masters in IT, he also intends to complete a nursing course and apply for permanent residence. However, the applicant concedes that he would not be able to apply for the Student visa while holding the Skilled visa. The applicant also states that he might get the sponsorship in the disability sector but he has not made any inquiries and has no arrangements in place for the sponsorship. The applicant also states that he might be able to apply for the Skilled visa on the basis of his IT skills but, again, the applicant has not presented any firm plan and has not established his ability to make an application for the Skilled visa. The applicant has not been able to describe a meaningful pathway to obtain a permanent visa and, in such circumstances, the applicant’s claim that he wants to remain in Australia is unpersuasive as he has no permanent visa to enable him to do so.

13. The Tribunal accepts that the applicant presently works in the ‘critical sector’. In the Tribunal’s view, given the fact that the applicant is only able to remain in Australia temporarily, and not for a very long period until the expiry of his visa in 2027, his employment does not constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

14. There is no evidence of any non-compliance with visa conditions.

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

15. In his submission to the delegate the applicant refers to having completed study in Australia and he provided a number of documents evidencing his study in Australia. The Tribunal accepts that evidence.

16. The applicant refers to having married his partner in Nepal in February 2023 and states that  it is hard for them to live apart. While the Tribunal accepts that if the visa remains cancelled, the applicant will not be able to sponsor his partner, as he told the Tribunal is his intention, the Tribunal is also mindful that the applicant is able to return to Nepal at any time to live with his partner. That is, the cancellation of the visa does not result in the applicant having to be separated from his partner.

17. The applicant refers to his employment in the aged and disability sectors, which is experiencing a workforce shortage. He presented a number of documents evidencing employment. The Tribunal accepts that the applicant is employed and contributes to the community through his employment. The applicant has not presented satisfactory evidence that if he was to leave his employment, the employer will be unable to replace him, despite the claimed workforce shortages.

18. The applicant refers to the mental stress and anxiety due to the relationship breakdown and he spoke about the hardship associated with the relationship breakdown in his oral evidence. The Tribunal accepts that the break-down of the relationship may have been hard for the applicant, but it is unclear whether these circumstances continue to exist, given that the applicant has now re-married and given the passage of time. It is also unclear how such stress would be exacerbated by the cancellation of the visa.

19. In oral evidence the applicant also referred to the ‘hard time’ he experienced after his relationship ended and once his visa was cancelled. He states that it was his partner who was responsible for the relationship break-down because he cheated. He states that he was eligible to apply for the visa in his own right but he relied on his partner who suggested they apply together due to the high cost of the application and it is not fair for him to now face the cancellation of the visa.

20. In his written submission to the Tribunal of 3 September 2024 the applicant also refers to his employment in the disability support and aged sector and the nature of his duties. He presented a number of documents relating to his employment. The applicant refers to the importance of aged care and support workers in Australia and the predicted shortage of workers. The applicant refers the existence of strong compassionate circumstances and his contribution as a support worker and assistant in nursing, stating if that if his contribution is not recognised, this will result in ‘irreversible harm’ to vulnerable individuals and hardship to their families. The Tribunal considers this submission substantially exaggerated as the applicant failed to provide any evidence, and satisfy the Tribunal, that he could not be replaced and that others would be unable to perform the roles that are currently performed by the applicant. The Tribunal is not satisfied that if the applicant’s visa remains cancelled, this would cause hardship, let alone ‘irreversible harm’ to others.

21. The applicant refers to mental and emotional ‘turmoil’ he has experienced due to the breakdown of his relationship (and he provided to the Tribunal a statement and other evidence concerning his present relationship). The applicant refers to lack of sleep and mental stress. The applicant also refers to the impact of the cancellation of his visa on his mental health and he provided to the Tribunal a copy of a psychological report dated August 2024. Noting that the report is based substantially on self-reporting and was prepared shortly before the Tribunal hearing, the Tribunal considers the evidence in that report to be self-serving and of little probative value.

22. The applicant states that he had the option of applying for the Skilled visa independently but chose not to do that as he hoped to be with his ex-partner and there was no need to make two applications.

    Circumstances in which ground of cancellation arose.

23. The ground for cancellation arises because the applicant’s relationship with his partner and the primary visa applicant has ended. The applicant states that this was a circumstance beyond his control.

24. In his response to the NOICC the applicant states that Mr M had reconciled with his ex-partner and the applicant states that he also married another person who lives in Nepal. While these circumstances raise concerns about the claimed de facto relationship between the visa applicant and Mr M at the time they sought the visa, this is not a matter for the present Tribunal.

25. The applicant told the Tribunal that he was ‘tortured’ in the relationship because his partner had other relationships. He states there was no family violence. The Tribunal finds that there was no family violence in the relationship.

    Past and present behaviour of the visa holder towards the department

26. Nothing adverse is known about the applicant’s behaviour towards the Department. The applicant told the Tribunal that he has been cheated and decided to end the relationship and he was the one who informed Immigration, although he could have lied. The Tribunal acknowledges that the applicant has complied with his obligations to inform the Department about the changes in his circumstances.

    Whether there would be consequential cancellations under s 140

27. There are no persons whose visas would be subject to consequential cancellation. The applicant told the Tribunal that if his visa is reinstated, he intends to sponsor his partner to come to Australia.

    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

28. If the applicant’s visa is 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 would 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.

    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

29. The applicant has no family in Australia. There are no children who would be affected by the cancellation of the visa. There is no evidence, and the applicant does not claim, that he would be subjected to any harm upon return to his home country. The Tribunal finds that  there are no non-refoulement obligations arising in this case.

30. The Tribunal finds that international obligations would not be breached by the cancellation of the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. The visa in question is not a permanent visa.

    Any other relevant matters

32. Many of the matters raised by the applicant have been addressed above.

33. The applicant refers to the economic, cultural and other benefits of being allowed to remain in Australia. He refers to the shortage of skilled workers by 2031 (the Tribunal is mindful that the applicant’s visa will expire well before that date). The applicant states that his presence in Australia ‘supports the country’s economic stability, enriches its cultural fabric and addresses workforce shortage in a vital sector’. As noted above, the Tribunal finds such generalised statements unhelpful and greatly exaggerated. The applicant has not satisfied the Tribunal that  he is irreplaceable and that if he is not permitted to remain in Australia, others will be affected.

34. In his written submission to the Tribunal the applicant refers to his present relationship and outlines the reasons for the breakdown of his previous relationship.

35. The applicant provided to the Tribunal a copy of the Invitation to Apply for ACT Provisional 491 nomination, issued in December 2021. He told the Tribunal that both he and Mr M received the invitations on the basis of their skills but chose to make only one application as they planned to be together. However, there is no evidence that the applicant did apply for the nomination and no evidence that it was (or would have been) approved, let alone that the application for the visa would have been approved. The evidence shows that he had merely commenced the process of making a vis application but did not pursue it.

36. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa as the circumstances that permitted the grant of the visa no longer exist.

37. The Tribunal has formed the view that the applicant is not fulfilling the purpose of his visa and that is a significant factor in favour of the cancellation. The cancellation would not be in breach of Australia’s international obligations.

38. In the circumstances of this case, the Tribunal has decided to give greater weight to other considerations. Importantly, the applicant’s employment and contribution to Australia through such employment weigh significantly against the cancellation. The Tribunal accepts that the applicant works in a disability and aged sector, where there is a shortage of staff, and he told the Tribunal that he intends to study nursing in the future and he wants to continue to work in the health sector. The Tribunal notes that the applicant’s visa is not due to expire until 2027, so there is a period remaining for the applicant to be able to continue with his contribution.

39. The Tribunal gives weight to the fact that the applicant may have been able to apply for the visa in his own right, rather than as a secondary applicant (although the applicant’s eligibility for the visa has not been established, the applicant does have a tertiary degree and did receive an invitation to apply for sponsorship) and he claims the decision for him to apply as a secondary applicant was a random one, based on the cost of the application. That is, it is possible that the applicant could have made the application as the primary applicant and Mr M as a secondary applicant and, if their relationship broke down, the applicant’s visa would not be at risk of cancellation.

40. The Tribunal also gives some weight to the fact that the applicant is likely to experience hardship as a result of his visa being cancelled, including loss of opportunity to study, pursue his employment and pursue other visa options.

41. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

42. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

    Kira Raif
    Senior Member