GECESKI (Migration)

[2019] AATA 3541

GECESKI (Migration) [2019] AATA 3541 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Filip GECESKI

CASE NUMBER:  1831544

DIBP REFERENCE(S):  BCC2018/4676166 OSF2014/012073

MEMBER:Hugh Sanderson

DATE:5 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 101 (Child) visa.

Statement made on 05 July 2019 at 2:45pm

CATCHWORDS

MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – ground for cancellation – consequential cancellation – applicant sponsored by father – decision to cancel father’s Partner visa affirmed by the Tribunal – consideration of discretion – purpose of visa grant cease to exist – no substantial ties to Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140

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 Immigration to cancel the applicant’s Subclass 101 (Child) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant’s father, who had sponsored him for his Child visa, had subsequently had his Partner visa cancelled and was not satisfied that the applicant’s visa should not be cancelled. 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

3. The applicant is a citizen of Macedonia and is currently 22 years old. His father, Borislav Gecheski, was granted a Subclass 801 Partner (Residence) visa on 25 July 2014. The applicant applied for the Subclass 101 Child visa on 13 November 2014 sponsored by his father. He was granted the visa on 19 January 2016 and first entered Australia on 26 February 2016.

4. Since being given the right to reside in Australia the applicant has travelled out of Australia as follows:

   ·From 12 August 2016 to 30 October 2016;

   ·From 1 July 2018 to 16 September 2018; and

   ·From 14 April 2019 and has not returned.

5. On 18 October 2018 the Department cancelled the father’s Partner visa on the basis that he had provided incorrect answers in respect of his Partner visa application. As the applicant was granted a visa only because his father had been granted a Partner visa and has that visa had now been cancelled it was found that there were grounds for cancellation under s.140(2) of the Act.

6. When the delegate considered whether the applicant’s visa should be cancelled they took into account the following issues:

   ·The application for the Child visa was made on the basis that the applicant would be living with his father, whose visa had now been cancelled;

   ·There was no information the applicant had not complied with the conditions of his visa;

   ·There was little information which would indicate the applicant had integrated himself into Australian society;

   ·The applicant had family, including his mother, who continue to live in Macedonia and there is nothing to indicate that he would not be able to return to live in Macedonia;

   ·The applicant may not have been aware of his father’s immigration fraud and the cancellation of his father’s visa would not have been by any direct action of the applicant;

   ·The applicant had previously been cooperative with the Department; and

   ·If the visa was cancelled, it is likely the applicant would return to Macedonia and there is no information that the applicant would not be able to live peacefully in Macedonia.

7. After considering all the relevant matters, the delegate concluded that the applicant’s visa should be cancelled.

   Information to the Tribunal

8. The Tribunal wrote to the applicant on 22 March 2019 inviting him to a hearing before the Tribunal. The applicant’s agent responded on 27 March 2019 stating that the applicant had now left Australia permanently however may still wish to be included in the case.

9. The applicant departed Australia on 14 April 2019 and has not sought to return to Australia.

10. The applicant’s agent appeared before the Tribunal on 17 June 2019. The hearing was a combined hearing with a review of the Department’s decision to cancel the applicant’s father’s Partner visa. The applicant’s agent appeared for both the applicant and his father. The applicant’s agent confirmed that if the decision to cancel the applicant’s father’s Partner visa was set aside then the decision to cancel the applicant’s visa should also be set aside. The applicant’s agent confirmed that if the decision to cancel the applicant’s father’s Partner visa was affirmed then the applicant would not be contesting the exercise of the discretion to cancel his Child visa.

11. On 5 July 2019 the Tribunal affirmed the Department’s decision to cancel the applicant’s father’s Partner visa (file number 1831543).

12. 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

13. Section 140(2) of the Act states that where a person’s visa is cancelled under s.109 of the Act and another person who holds a visa only because the person whose visa is cancelled held a visa, then the Minister may cancel the other person’s visa without notice.

14. The applicant holds his Subclass 101 Child visa because he was sponsored by his father who, at the time the applicant was sponsored, held a Subclass 801 Partner (Residence) visa. The applicant’s father’s visa was cancelled on 18 October 2018. That decision has now been affirmed by the Tribunal. Accordingly, as the person who sponsored the applicant for the Subclass 101 Child visa has had their visa cancelled there is a ground for cancellation of the applicant’s visa pursuant to s.140(2) of the Act.

    Should the visa be cancelled?

15. There are no legislative grounds required to be taken into account before a decision to cancel the person’s visa under s.140(2) of the Act may be made. The Tribunal has considered all the circumstances of the applicant including the issues referred to in Departmental policy.

16. The applicant has returned to Macedonia and is living with his mother in her home. He did not attend the hearing before the Tribunal or provide any further evidence in support of his application. The applicant’s agent, who is also acting for his father, advised the Tribunal that if the Tribunal affirmed the Department’s decision to cancel the applicant’s father’s visa then the applicant would not be contesting the exercise of the discretion to cancel the applicant’s visa.

17. As the Tribunal has affirmed the decision that the applicant’s father’s visa be cancelled, the submission of the applicant’s agent is that the applicant is not contesting the cancellation of his visa. The Tribunal has, however, still considered the discretionary factors as to whether the applicant’s visa should be cancelled.

18. The basis of the applicant coming to Australia 2016 and been giving the right to reside in Australia was based on the fact that he was the son of Borislav Gecheski who held a Partner visa. Borislav Gecheski Partner visa has been cancelled pursuant to s.109(1) of the Act due to his providing incorrect answers in his Partner visa application. The decision to cancel his visa has been affirmed by this Tribunal. There is no information which would indicate the applicant was aware of or complicit with his father in providing incorrect information in respect of his Partner visa application.

19. The applicant is now 22 years old. He had been living in Australia before his return to Macedonia for about three years. There is limited information as to the applicant’s activities in Australia. It was stated that he was studying in Australia and returned to Macedonia in April 2019 to be able to continue his studies. There is no information which would indicate that the applicant had not complied with the conditions of his visa while he was in Australia. There is no information that the applicant has breached Australian laws in any way.

20. Any cancellation of a visa to be able to reside in Australia will call some hardship for a person. The applicant’s grandmother continues to live in Australia. The applicant’s mother and sibling live in Macedonia. He is currently living with his mother. There is no information which would indicate the applicant has not been able to return to Macedonia to continue his studies and integrate into Macedonian life.

21. The Tribunal has considered all the circumstances of the applicant. Although there is no information which would indicate the applicant was aware of or complicit with his father in providing incorrect information in respect of his father’s Partner visa application the Tribunal has concluded that it is appropriate that his visa be cancelled. The only basis of the granting of the visa was the fact that he was sponsored by his father whose Partner visa was cancelled. The applicant appears to have little connection with Australia and was willing to return to Macedonia shortly before the hearing in respect of his application to live with his mother there. It appears that he has been able to return to Macedonia and continue his life there without any difficulties.

22. Considering all the circumstances, the Tribunal finds that the applicant’s visa should be cancelled and affirms the Department’s decision.

23. Having regard to all the circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

24. The Tribunal affirms the decision to cancel the applicant’s Subclass 101 (Child) visa.

    Hugh Sanderson
    Member