Gautam (Migration)

[2020] AATA 5056

Gautam (Migration) [2020] AATA 5056 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Richa Gautam

CASE NUMBER:  1924468

HOME AFFAIRS REFERENCE(S):          BCC2019/3240713

MEMBER:Donna Petrovich

DATE:21 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 21 September 2020 at 1:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – circumstance no longer exists – relationship ceased – member of the family unit – applicant’s plans for studies – financial hardship – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the visa holder’s dependent Student (subclass 500) visa was based on circumstance that no longer exists. Relevantly to this consideration, that the applicant was no longer a member of the Primary applicant’s family unit and that the department was notified that the relationship had ended on 4 June 2019. 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 18 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Dipak Pyakurel, who is the applicant's Partner.  The applicant provided the Tribunal with a copy of the delegates decision for the purpose of its consideration.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was no longer a member of Dipak Pyakural’s family unit and had ceased to be in an ongoing relationship and was not enrolled in a full-time registered course.

8. The Department was notified that the relationship had ended on the 4 June 2019, as a result of family violence where the applicant was the accused. Accordingly, the applicant has not complied with condition 8202.

   Background

9. The applicant is a 26 year old woman from Nepal, whose visa was granted on 8 October 2018.  The applicant arrived in Australia as the secondary applicant on a Student (Temporary) (Class TU) (Subclass 500) Visa, which was granted on the basis that she was a member of Dipak Pyakurel’s family unit. It was confirmed by the Department that she ceased to be in an ongoing relationship on 31 July 2019, that the couple no longer have a mutual commitment to a shared life together to the exclusion of all others. That the relationship between them is no longer genuine and continuing, and that they live separately on a permanent basis.

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

11. 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 Procedural Advice Manual (PAM3) ‘General visa cancellation powers’.

12. The Tribunal has considered the applicant’s evidence provided at the hearing along with the documentation provided to the delegate.  The information provided to the Tribunal at the hearing has ben considered by the Tribunal in its exercise of discretion as outlined above.

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

13. The applicant told the Tribunal that she had intended to study, but that her husband was studying, and that lack of finances did not enable her to study at that time.  It was decided between the couple that she would study when her husband had completed his studies. She was working two jobs at that time and was working eight hours during the day in a warehouse and doing domestic cleaning of an evening for up to six hours.  The applicant told the Tribunal that she suffered some sort of emotional breakdown during this time, and the couple had argued and an Apprehended Violence Order (AVO) had been placed on her by her husband.  The applicant claims that charges had been dismissed, but the AVO conditions remain in place and that prevents her from maintaining a relationship with her husband.

14. The Tribunal in considering this evidence determines that as a result of the AVO conditions the couple are unable to talk, meet or come within 100 meters of each other, therefore it is impossible for them to act legally as a couple or resume a relationship even if that was their desire to do so.  Therefore, the couple does not live together and have not lived together for over 12 months. In this case there has ceased to be an ongoing relationship, and the couple no longer have a mutual relationship to the exclusion of all others, and their relationship is no longer genuine and continuing as per the conditions of the visa.  On this basis the purpose of the visa holder’s travel and stay in Australia no longer exists and there are no compelling reasons to travel or remain in Australia and on this basis the Tribunal gives little weight in favour of exercising discretion not to cancel.

    The extent of compliance with visa conditions

15. The applicant told the Tribunal of her desire to study and her inability to do so because of financial constraints and of her frustration at no being able to pursue her nursing studies. The applicant told the Tribunal that she was working two jobs whilst her husband studied, and that this had led to an argument which resulted in her husband reporting that she had been violent and assaulted him to the police.  As a result of this she was arrested and was unable to return to her home when released from the police station. She told the Tribunal that she had to sleep in Railway Stations and at friend’s homes, as she was unable to return to her own home because of the intervention order.

16. The applicant has not complied with the conditions of her visa as a result of the intervention order as she has not maintained an ongoing relationship with the primary applicant. In considering the circumstances which led to this breach the Tribunal has some sympathy for the circumstances in which the applicant has found herself and whilst the applicant has not been compliant with her visa conditions, is prepared to give some small weight in favour of the applicant in this regard.

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

17. At the hearing the applicant told the Tribunal that “if she had to go home then so be it”, that she had lived in her home country for 19 years with her family, before joining her husband in Australia. The Tribunal also heard that she and her husband remained married and had no opportunity to reconcile on the basis that there was an AVO preventing any contact.  The applicant admitted that she had breached conditions of the AVO on one occasion after drinking too much, when she had called her husband to tell him that she loved him and missed him.

18. The applicant told the Tribunal that it would be difficult for her if she returned home with no qualifications, and because she had been married previously and this would be hard for her socially. She explained that she had wasted three years, she hasn’t gone to school and that she had no skills, so she did not know what she would do. The applicant told the Tribunal that if she cannot study here, then she does not have anything here now that she has no husband.

19. The Tribunal in considering this does not accept that the applicants’ claim that social discomfort or lack of skills will cause her hardship. On this basis the Tribunal places little weight in the applicant’s favour of exercising discretion not to cancel.  

    Circumstances in which the ground for cancellation arose

20. The applicant told the Tribunal that she and her husband had made a decision because of the couple’s financial circumstances that the primary applicant would study initially and then the opportunity would be taken up by the secondary applicant.  The Tribunal heard that during this time the secondary applicant was working two jobs.  During the day she was working for eight hours in a warehouse and then she would do cleaning after she finished.

21. The cancellation arose because of the couple’s separation as a result of an AVO being taken out by the primary applicant against her.  The Tribunal heard from the applicant that the circumstances which led to this were that the couple had argued about when she would be able to commence her studies, as the applicant had undertaken short courses and graduated in Certificate iii in Individual Care at Care Education, but wanted to undertake further nursing studies.

22. On the morning the of the altercation between the couple the applicant told the Tribunal that her husband had been agitated and was unhappy that she had asked him to drive her to a new job as they had one car and it was an 11 minute car ride as opposed to nearly an hour by train. The couple argued in the car and it was alleged by her husband that she had assaulted him.

23. He put her out of the car, and when she got home from work that night he was packing a bag to leave, and the police arrived shortly afterwards and she was arrested and taken to the police station, where she was charged.  The applicant told the Tribunal that she was scared, unable to return home as she was not permitted to return as a result of the AVO.

24. The applicant’s husband who appeared as a witness, told the Tribunal that they did not speak and had not had any contact for over two years. When asked if it was possible that they may reconcile he said “that it required two people for that to occur”. He added that “it looked like they had started their new life apart now, and that the family violence had been ‘physical and verbal’, and he did not think it was a good idea to start a new life together from his point of view”.  The Tribunal gives no weight in considering this of  exercising discretion not to cancel.

25. The applicant told the Tribunal that she did not know what to do and had nowhere to go, initially sleeping in railway stations and staying with friends.

26. The Tribunal took submissions from the applicant’s migration agent who told the Tribunal that he would seek the opportunity if the Tribunal gave him 28 days to seek a variance of the AVO conditions. The Tribunal afforded the applicant’s migration agent the opportunity to seek a variation to the AVO as requested by him. The Tribunal approved 28 days for provision of the variation which the migration agent requested.  The Tribunal received and considered a response in the prescribed period but was not satisfied that there was any new evidence, documentation or a variance to the AVO conditions. The Tribunal in considering this gives some small weight in favour of the applicant.

27. In considering the circumstances as a whole the Tribunal is of the view that the couple have been separated for over 12 months and are no longer living together and in light of the circumstances surrounding the separation and AVO conditions are unlikely to seek reconciliation. As such the Tribunal finds that the applicant is no longer part of Mr. Paykels family unit and is no longer in a genuine and continuing relationship with Mr Paykels who was the Primary visa holder, and as such the Tribunal places no weight in favour of exercising discretion not to cancel.

    Past and present behaviour of the visa holder toward the department        

28. There is nothing before the Tribunal to indicated that the applicant has not cooperated with the Department or the Tribunal in her dealings and gives this some weight in favour of the applicant and not cancelling her visa.

    Consequential cancellations under s.140

29. There is no evidence that there would be consequential cancellations if the applicant’s visa is cancelled and the Tribunal gives this no weight.

    Mandatory legal consequences

30. There would be mandatory legal consequences, upon cancellations of the visa and the Tribunal notes that the visa under consideration has already expired.  The applicant would become unlawful, and subject to the possibility of detention, although she would also be eligible to apply for a bridging visa. The applicant would be subject to the provision of s.48 of the Act which limits the applications for other visa the applicant would otherwise be entitled to apply for whilst in Australia.  The Tribunal has considered the restrictions this would impose upon the applicant and as such gives this some weight in favour of the applicant.

    Any international obligations

31. There is nothing before the Tribunal to indicate that there are any international obligations to consider.

32. The Tribunal has carefully assessed the relevant factors, both individually and cumulatively, including the evidence raised by the applicant and her estranged husband during the hearing.  The cancellation of the applicant’s visa is based on the relationship breakdown, as the applicant is no longer a member of Mr Pyakural’s family unit as is required to be the holder of the Dependent Student Visa.  Based on the evidence before the Tribunal, namely evidence submitted to the delegate and the applicant’s testimony to the Tribunal, the relationship has broken down as the result of an intervention order being served on the applicant, and the conditions of this have not permitted her to see her husband or to come within 100 metres of him, or have any contact with him.  The applicant breached the condition on one occasion by telephone and her husband reported the breach to police; this coupled with the initial complaint made by the husband leads the Tribunal to conclude that the couple are estranged and have not lived together for over 12 months.  In consideration of whether discretion should be exercised in relation to the cancellation of the visas, the Tribunal has given limited weight to the factors that have been assessed in the applicant’s favour.  However, on balance, the Tribunal has concluded, the circumstances in which the ground for cancellation arose outweighs the consideration of the other factors.  The Tribunal is satisfied that the factors in favour of the cancellation of the visa outweighs the other considerations.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.         

    Any other relevant matters

34. There are no other relevant matters before the Tribunal, therefore, neutral weight is given in this regard.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s subclass 500 (Student TU) visa. 

    Donna Petrovich
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.