Gill (Migration)

[2021] AATA 5216

Gill (Migration) [2021] AATA 5216 (14 October 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Manjinder Gill

CASE NUMBER:  2012322

HOME AFFAIRS REFERENCE(S):          BCC2019/3503901

MEMBER:  Kira Raif

DATE:  14 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Skilled - Graduate) visa.

Statement made on 14 October 2021 at 9:59am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – fact or circumstance no longer exist – secondary applicant – relationship with primary visa holder ceased – consideration of discretion – purpose of visa can no longer be fulfilled – opportunity to seek another visa onshore – not holder of a substantive visa – unable to apply for a Student visa onshore – employment in Australia – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 1, Item 1222(4)(b)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 July 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Skilled - Graduate) visa under s.116 of the Migration Act 1958 (the Act).

1. The applicant is a national of India, born in November 1987. He was granted the Class VC Skilled visa on 11 March 2019. In July 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there were ground for cancelling the applicant’s visa under s. 116 of the Act. It appears that the applicant did not respond to the NOICC and his visa was cancelled in July 2020. The applicant seeks review of the delegate’s decision.

1. The applicant appeared before the Tribunal on 11 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent.

1. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

Relevant law

1. 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.

1. 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?

1. The applicant provided to the Tribunal a copy of the primary decimos record. It indicates that the applicant was granted the Provisional Skilled visa in subclass 485 as a secondary applicant on the basis of his relationship with Ms Kaur. The primary decision record indicates that the applicant was no longer in a relationship with Ms Kaur. In his oral evidence to the Tribunal the applicant confirmed that his relationship with Ms Kaur ended, although he claims that the decision was made by Ms Kaur and he only heard about it once his visa was cancelled. Irrespective of who initiated the break-up, the applicant’s evidence confirms that his relationship with Ms Kaur has ended.

1. In his written submission to the Tribunal of 6 October 2021 the applicant confirms that he had a genuine and ongoing relationship with Ms Kaur when the Skilled visa was granted and that she ended the relationship without his knowledge. The applicant submits that he should not be punished for the relationship breakdown. The Tribunal notes, however, that the legislation is not concerned with ‘punishment’ but, rather, allows for the visa to be cancelled when the visa was granted on the basis of circumstances that no longer exist.

1. Having regard to the applicant’s evidence, the Tribunal finds that the applicant is no longer a spouse and a member of the family of Ms Kaur. The Tribunal finds that the decision to grant him the visa was based, in part, on the fact that the applicant was the spouse and a member of the family unit of Ms Kaur who was the primary visa applicant. The Tribunal finds that this fact or circumstance is no longer the case or no longer in existence. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists.

1. 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

1. 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

1. 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 Tribunal has found that the relationship is no longer in existence and 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.

1. With respect his need to remain in Australia, the applicant refers to his employment and states that his employer relies on him as he lives in a small town in a regional area and there is staff shortage. The applicant states that he is a good chef and people like what he cooks and people know him. The applicant told the Tribunal that he intends to apply for a Student visa onshore to enable him to complete study in cookery in Australia and continue to work for his employer.

1. The applicant presented no evidence relating to his employment prior to the hearing. At the Tribunal’s request, the applicant presented evidence of employment after the hearing, including his payslips and a statement from the employer, outlining the nature of the applicant’s employment and the difficulty in finding staff in a regional area. The employer has indicated their willingness to employ the applicant and expressed support for the cancellation of the applicant’s visa to be set aside. The Tribunal considers the presented evidence inadequate as there is little evidence what steps, if any, the employer has taken to attract staff who could perform the same role as the applicant and of what arrangements have bene made, should the applicant decide to leave this employment in the future.

1. Nevertheless, the Tribunal accepts that the applicant has been employed as a cook in a regional area and that the employer is willing to continue to employ the applicant. In oral evidence the applicant told the Tribunal that he intends to apply for a Student visa to enable him to complete a hospitality course and continue with full-time employment. However, as the Tribunal pointed out in the course of the hearing, Item 1222(4)(b) of Schedule 1 of the Migration Regulations may prevent the applicant from making a Student visa application onshore. This is because, according to the information in the primary decision record and the applicant’s written submission to the Tribunal, the applicant’s Skilled visa would have expired in March 2021 and the applicant would not be a holder of a substantive visa, even if the cancellation is set aside.

1. Following the hearing, the applicant’s representative provided a further submission to the Tribunal, again referring to the applicant’s employment in a regional area and the difficulties in attracting employees in that area. The representative states that the applicant intends to apply for a Class GG Temporary Activity subclass 408 visa, if the cancellation is set aside. The Tribunal has not assessed the applicant’s eligibility for that visa, and it is not the role of this Tribunal to do so, but it appears that the applicant may be able to make a valid application for that visa. In these circumstances, the Tribunal accepts that the loss of that opportunity may cause hardship to the applicant and his employer. However, the Tribunal does not consider that the applicant’s employment (in circumstances where he does not have a visa to remain in Australia and to work in Australia and there is no guarantee that he would be granted such a visa) constitutes a compelling need for the applicant to remain in Australia.

The extent of compliance with visa conditions

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

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

1. The applicant told the Tribunal that he had spent a lot of money to support Ms Kaur’s study in Australia and had asked his parents for funds to be able to support Ms Kaur. The Tribunal is prepared to accept that the applicant had spent funds to be able to support Ms Kaur, although it is not clear how these facts could cause hardship to the applicant in the future.

1. The applicant told the Tribunal that he has been living in Western Australia for several months and working as a cook. He also has other skills. The applicant states that three businesses are dependent on him. Following the hearing, the applicant presented evidence of his employment and a letter of support from his employer to the Tribunal. The Tribunal accepts evidence of the applicant’s employment.

1. The applicant states that he wants to apply for a Student visa in the future. The applicant suggested that he has some savings and his family will provide him with financial support to enable him to study in Australia. The applicant states that he intends to study a two year cookery course at Stotts College and he has already approached some education providers but cannot get an offer of enrolment if he has no visa. As noted above, the Tribunal has formed the view that the applicant would be unable to make a valid application for a Student visa onshore because even if the cancellation is set aside, he would not be a holder of a substantive visa and he did not hold the type of visa prescribed in Item 1222(4). The applicant concedes that in his post-hearing submission.

1. The applicant has now indicated that he wishes to apply for a Subclass 408 visa. As the applicant has not held a substantive visa for several months, he would be unable to make that application onshore unless the Tribunal sets aside the cancellation. As such, the setting aside of the cancellation would enable the applicant to seek another visa in Australia and, conversely, if the applicant’s visa remains cancelled, the applicant may be unable to make that application onshore. The Tribunal accepts that the loss of the opportunity to seek another visa onshore in circumstances where the applicant had been employed and there is evidence from the employer confirming their reliance on the applicant, may constitutes hardship to the applicant and his employer.

1. The applicant claims that before his visa was cancelled, he was very depressed. He claims that he cannot return to India without having achieved anything and he wants to have something ‘in his hand’ before returning to India. The applicant claims that he would be ashamed to return to India as he has been in Australia for six years and it would be shameful

to return to India without any qualifications. He is the only son for his parents and they have high expectations for him. As noted above, the applicant’s ability to remain in Australia to pursue study will be governed by factors other than the cancellation of the Skilled visa. The Tribunal is also mindful that if the applicant wishes to pursue study in Australia, he may be able to seek a Student visa offshore in the future.

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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The ground for cancellation arises because the applicant was granted the visa as a secondary applicant, being a member of the family unit and the spouse of the primary visa applicant. The applicant’s relationship with the primary visa applicant had ceased and the applicant claims the relationship was ended by his former partner and without his knowledge. The applicant told the Tribunal there was no family violence in his relationship and the Tribunal does not consider that the relationship broke down as a result of family violence.

Past and present behaviour of the visa holder towards the department

1. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

Whether there would be consequential cancellations under s.140

1. There are no persons whose visas would be subject to consequential cancellation.

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

1. 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 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.

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

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

1. The applicant told the Tribunal that he had been receiving threatening calls from an unknown number and his email and bank accounts have been hacked. The applicant states that he was also attacked and he left NSW to be safe. He suggested that maybe his ex-wife or her partner wish to harm him. The applicant also referred to being a farmer in the past. The

applicant states that he received a threat that if he returned to India, he would be killed or harmed.

1. For the following reasons, the Tribunal does not accept the applicant’s claims. Firstly, the applicant presented no evidence (for example, a police report, a bank statement, hospital or medical records, a statement from a phone company or other evidence) of these events. The applicant told the Tribunal that he had approached the police but the police refused to issue him with a report and he has no record of having approached the police other than a card. In the Tribunal’s view, if the applicant was attacked, there may be medical records or a police record. If his accounts were hacked, there may be statements from the service providers. The absence of any supporting evidence raises concerns about the credibility of these claims and the Tribunal is not prepared to accept the applicant’s assertions.

1. Secondly, the applicant has not made any of these claims previously but raised these for the first time in the Tribunal hearing. The applicant’s written submission to the Tribunal dated 6 October makes no mention of these threats and the applicant’s representative confirmed that he has not received that information. The applicant claims that he believed it was not relevant to his case but as noted above, the applicant has been represented throughout this review and the applicant would have been informed, either by his representative or by reading the primary decision record, of what discretionary consideration were relevant tin his case. The applicant’s failure to mention the threats and the hacking and the other information also raises concerns about the veracity of that evidence.

1. The Tribunal found the applicant’s evidence in relation to this aspect to be extremely vague and has formed the view that these are a recent invention. The Tribunal does not accept the applicant’s claims. The Tribunal does not accept the applicant has received threats or that he was attacked and the Tribunal does not accept that the applicant is genuinely fearful of any harm upon return to India. The Tribunal is also mindful that the applicant is eligible to seek a protection visa in Australia if he believes he would face any harm or persecution in India for whatever reason.

1. The Tribunal also notes that the visa in question would have expired. It is not the cancellation of the visa that would result in the applicant being required to leave Australia but the fact that the applicant would be an unlawful non-citizen (unless he is granted another visa) whether or not his Skilled visa is reinstated.

1. The Tribunal finds that the cancellation of the visa would not be in breach of Australia’s non- refoulement obligations.

1. The applicant has no family in Australia and his family are in India. The Tribunal finds that the principles of family unity would not be breached. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

Any other relevant matters

1. The applicant told the Tribunal that he has provided help to the community and he has made contributions to Fire NSW and provided food to homeless people. The Tribunal is prepared to accept that the applicant has made a contribution to the community.

1. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the decision to grant the visa was based, in part on a particular fact or circumstance that is no longer the case or no longer exists and that there are grounds for cancelling the visa. The Tribunal has formed the view that the applicant can no longer fulfil the purpose of his visa and that the applicant does not have a compelling need to stay in Australia. In the Tribunal’s view, these factors weigh heavily in favour of the cancellation.

1. The applicant’s initial evidence to the Tribunal is that he intends to study in Australia but the Tribunal has formed the view, and the applicant concedes, that he cannot apply for a Student visa onshore. The applicant has now expressed an intention to seek another visa and there is evidence before the Tribunal from the applicant’s employer. The Tribunal acknowledges that if the present visa remains cancelled, the applicant may be unable to apply for another visa onshore while he would have that opportunity if the cancellation is set aside. Given the present difficulties with overseas travel and the possible delays that may be associated with the applicant’s travel offshore and any future visa application, the Tribunal accepts that some hardship would be caused to the applicant and his employer if the application for another visa cannot be made onshore.

1. The Tribunal has formed the view that the applicant should be given an opportunity to seek another visa in Australia. The Tribunal reaches that conclusion, having regard, in particular, to the circumstances in which the ground for cancellation arose. This is not the case where the applicant has been untruthful with Immigration or where he had given incorrect answers on the application form or bogus documents with his visa application. This is a case where the applicant relied on his partner to get the visa and his relationship with his partner has ended. There does not appear to be any adverse evidence concerning the applicant’s interactions with the Department.

1. Considering the circumstances as a whole, the Tribunal has formed the view that the applicant should be given an opportunity to seek another visa in Australia while onshore and that can only happen if the present cancellation is set aside. The Tribunal concludes that the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Skilled - Graduate) visa.

Kira Raif Senior Member