Gill (Migration)

[2019] AATA 1033

Gill (Migration) [2019] AATA 1033 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705860

MEMBER:Alison Mercer

DATE:13 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 13 February 2019 at 5:21pm

CATCHWORDS

MIGRATION – cancellation – Federal Circuit Court remittal – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – member of the family unit – spousal relationship ended – medical treatment in Australia – applicant’s access to his children – separation from new Australian family – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5F, 48, 116, 140, 351, 359
Migration Regulations 1994, Schedule 2 cls 457.321; r 1.12

CASES

MIMA v Teoh (1994) 183 CLR 273
MIMA v Zhang (1999) 84 FCR 258   

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 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 30 March 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s subclass 457 (Temporary Work (Skilled)) 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 circumstances that permitted the visa to be granted to the applicant no longer existed. Specifically, the delegate found that the applicant was granted a subclass 457 visa on the basis that he was a member of the family unit (the spouse) of the primary visa holder, [Ms A], but that the Department had been informed that their spousal relationship had ended. The delegate found that a ground for cancellation existed, and that the factors in favour of cancellation outweighed those against.

3. The Tribunal received a review application from the applicant on 4 April 2016, which was accompanied by a copy of the delegate’s decision. On 21 October 2016, the Tribunal (differently constituted) affirmed the delegate’s decision to cancel the applicant’s subclass 457 visa.

4. The applicant sought judicial review of that decision on 15 November 2016, and on 23 March 2017, the matter was remitted by consent from the Federal Circuit Court of Australia to the Tribunal on the basis that the Tribunal had made a jurisdictional error by failing to put information relating to an apprehended violence order preventing the applicant having contact with his children to the applicant pursuant to s.359A or s.359AA of the Act.

5. The matter was reconstituted to another Tribunal Member on 19 September 2018.

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

7. The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current wife, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The applicant was represented in relation to the review by his registered migration agent, [named].

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

HISTORY OF THE MATTER

Subclass 457 visa grant of 23 April 2015

10.    As noted above, the Department’s records indicate that the applicant was granted a subclass 457 visa on 23 April 2015 on the basis that he was the husband of the primary subclass 457 visa holder, [Ms A]. The couple’s children were also granted visas on the same basis. The family’s subclass 457 visas were valid until 23 April 2019.

NOICC of 25 February 2016

11. The Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant on 25 February 2016, advising him that there appeared to be a ground for cancellation of his visa under s.116(1)(a), which provides that the Minister may cancel a visa if 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 that no longer exists. The letter stated that it appeared that the applicant was no longer a member of [Ms A’s] family unit (as defined in rr.1.12 and 5F). He was invited to provide a response within 5 working days.

Applicant’s responses of 1 March 2016 and 10 March 2016  

12.    On 1 March 2016, the applicant’s agent responded that the applicant was feeling extremely stressed and anxious and was unable to provide a proper response in the requested timeframe. In addition, he had undergone [specified] surgery on 11 December 2014 and was taking [specified medication]. An extension of time to respond was requested.

13.    On 10 March 2016, the applicant’s new agent made a response which can be summarised as follows:

• the applicant confirmed that the applicant was no longer in a relationship with [Ms A], and the applicant considered that their relationship permanently ceased in December 2015. Prior to this, the couple were living apart but not on a permanent basis due to him being unable to find work in [Town 1]. As a result, the applicant moved to Melbourne but travelled back to [Town 1] on weekends to see his family. [Ms A] remained in [Town 1] due to her subclass 457 visa sponsored employment being located there;

• this, and the applicant’s [specified] surgery in late 2014, put the couple’s relationship under stress. The catalyst for the breakdown of the relationship occurred on [a date in] December 2015, when there was an incident at the family home that resulted in the police being called and an interim intervention order being issued against the applicant;

• since the intervention order, the applicant had had no contact with his children and had been advised to get family law advice about being able to gain access to his children if possible. In the meantime, the applicant had been charged with a number of offences [in] February 2016 which were yet to be heard. As such, it was inappropriate to provide further detail as it might prejudice him in upcoming proceedings;

• the charges were due to be heard [in] April 2016. The applicant was not considered a risk to the community and was not in remand or subject to bail. He was currently seeking legal advice about the criminal matters as due to his limited English, he had difficulty understanding the paperwork he received from Victoria Police;

• it was understood that [Ms A] had made arrangements to file for divorce and a matter had been listed for [February] 2016 for a directions hearing. The applicant had yet to receive paperwork confirming this. However, given the applicant had 2 legal cases pending, it would be inappropriate to cancel his visa, particularly when he was yet to be found guilty of any offence and had a right to pursue access to his children;

• the applicant conceded that he was not the primary subclass 457 visa holder but he had 2 children who remained subclass 457 visa holders, and the cancellation of his visa would effectively remove his ability to see them (or pursue his ability to do so). Moreover, if the cancellation proceeded, the applicant would hold a bridging visa E without work rights, and this would affect his ability to support himself and to access legal advice about his pending matters;

• there had been no other breaches of visa condition by the applicant;

• cancellation would cause the applicant significant hardship by effectively removing him from his children. In addition, he had a significant health issue which was still being treated in Australia, and the current stress might be contributing to his [health] condition;

• there was no suggestion that the applicant had not cooperated with the Department to date; and

• cancellation of his visa would effectively deny the applicant procedural fairness in relation to his criminal and family law matters.

Department decision of 30 March 2016

14. The delegate found that the applicant had separated from his wife, [Ms A], and was therefore no longer a member of her family unit, as per rr.5F and 1.12. He therefore found that a ground for cancellation of the applicant’s subclass 457 visa was made out pursuant to s.116(1)(a) as the applicant had been granted his subclass 457 visa on the basis that he was a member of his wife’s family unit and he no longer was. The delegate then went onto consider the factors in favour of cancellation and those against to determine whether or not to cancel the visa.

15.    The delegate found that as the applicant was no longer a member of his wife’s family unit, he was no longer in Australia in accordance with the original purpose of his visa. 

16.    The delegate conceded that there was no evidence of any other non-compliance with visa conditions by the applicant, aside from no longer being a member of his wife’s family unit. He also accepted that the applicant’s past and present behaviour towards the Department gave no reason to cancel his visa.

17.    In relation to the hardship that would be caused if the visa were cancelled, the delegate acknowledged that the applicant would become an unlawful non-citizen and potentially liable for removal but found that he could apply for a bridging visa E to remain lawfully. However, the delegate conceded that this would limit the applicant’s options to apply for another visa within Australia. While he acknowledged that there would be some degree of hardship caused to the applicant if his visa were cancelled, he noted that he had no information about any hardship that would be caused to the applicant’s family in Australia.

18.    The delegate acknowledged that the circumstances in which the ground for cancellation were complex and resulted in the permanent breakdown of the applicant’s marriage. Having considered all the evidence and documents, the delegate gave more weight to the fact that the applicant and [Ms A] were no longer in an ongoing spousal relationship. He found that the reasons for this given by the applicant did not constitute a reason not to cancel his visa.

19.    The delegate found no evidence that cancellation of the visa would breach any of Australia’s international obligations.

20.    After consideration of the above factors, the delegate determined that the grounds for cancellation outweighed those against.

First Tribunal decision of 21 October 2016

21. The Tribunal was satisfied that a ground for cancellation was made out under s.116(1)(a). In considering the discretion to cancel, the Tribunal accepted that there was no evidence that the applicant had breached any of the (other) conditions of his visa, other than ceasing to be a member of the family unit of the primary visa holder. The Tribunal further accepted that the applicant had cooperated with the Department, but attached very little weight to these factors as reasons not to cancel his visa.

22.    The Tribunal noted that the applicant had advised at hearing that his family law and criminal matters had now been finalised. However, he was not able to provide any paperwork or documentation regarding access to his children, and therefore the most recent information before the Tribunal was the intervention order which precluded him from having any contact with them.  The Tribunal therefore attributed little weight to the applicant’s claim that the cancellation of his visa would separate him from his children, as it appeared he was already legally prevented from having contact with them. Similarly, the Tribunal considered the UN Convention on the Rights of the Child (CROC) and Refugee Convention but found that the latter would not be breached if the applicant had to depart. It further found that the CROC would not be breached given the applicant presently had no legal right to have access to his children.

23.    The Tribunal accepted that the applicant had health concerns, and that these might be exacerbated by the stress of having his visa cancelled, and gave some weight to this concern. It also gave weight to the fact that the applicant had lived in Australia for some years and would suffer some hardship, at least initially, if now required to depart.

24.    The Tribunal did not accept that cancellation of the visa would result in the applicant becoming an unlawful non-citizen as he currently held a bridging visa and had work rights. Moreover, his criminal law matters had been heard and resolved. The Tribunal noted that it was difficult to ascertain the status of the applicant’s family law matter, but it appeared that his divorce had been finalised and no evidence was provided of any other proceedings on foot. The Tribunal further found the applicant had family in India and had the capacity to work as [an occupation 1] there, as he had done so previously.

25.    In conclusion, the Tribunal acknowledged that there were some factors pointing against cancellation of the applicant’s visa, including his reasonably lengthy period of time living in Australia, his positive behaviour towards the Department generally and his health conditions. In contrast, however, the Tribunal found that these were not sufficient to outweigh the reasons in favour of cancellation, given the applicant was granted the visa for the purpose of accompanying his wife to Australia for the duration of her temporary visa. That relationship had now ended, and notwithstanding the applicant’s expressed wish to reconcile with his wife, this possibility was speculative at best.

Second Tribunal hearing of 24 October 2018

26.    The applicant confirmed that his divorce from [Ms A] was finalised [in] June 2016 and that he married his present wife, [Ms B], [in] October 2016.  He further confirmed that he had lodged a partner visa application with the Department on the basis of his marriage to [Ms B], who is an Australian citizen, in February 2017. The applicant said that this application been refused in March 2017 and he had lodged an application for review with the Tribunal (differently constituted). There was due to be a hearing for that case but it had been postponed due to the Tribunal Member in the other case considering that the review for this matter should be dealt with first.

27.    In response to the Tribunal’s query, the applicant said that he was not sure why his partner visa had been refused, although Schedule 3 was mentioned.

28. The Tribunal discussed with the applicant its preliminary view that a ground for cancellation existed under s.116(1)(a) due to his divorce from his first wife, the primary subclass 457 visa holder, and that it therefore now needed to consider the discretionary factors to determine whether or not the visa should actually be cancelled.

29.    In response to the Tribunal’s query, the applicant said that his ex-wife and 2 children still lived in [Town 1]. He signed a statutory declaration on 5 September 2017 to give his wife guardianship of their children for practical reasons, as he was living and working in Melbourne and could not be there if there was an emergency with the children. He said that he currently had a verbal agreement with his ex-wife that he could see his children and he did so on a semi-regular basis.  There was no formal child support agreement between them but he paid for Indian groceries to take to [Town 1] when he saw the children, as these goods were not readily available there. He also gave cash at times. The applicant said that he saw his children 2 to 3 times per month, if his health was good. He said that he saw them most weekends. To arrange this, he rang his ex-wife a few days ahead.  His sons were now aged [specified ages].  In response to the Tribunal’s query, the applicant said that the Apprehended Violence Order expired [in] January 2017 and his ex-wife did not renew it. He described his relationship with his ex-wife as functional, and said that it only existed because of the children. The applicant said that he had heard that his ex-wife planned to leave the country with the children without his consent, so he had had them added to the ‘wait list’ to prevent this happening. There was going to be a court hearing about this in late December 2018.

30.    The applicant said that his ex-wife had refused to let him have overnight access with the children, either in Melbourne or [Town 1], despite the fact that his sons and his step children got along quite well. At the moment, access visits involved him (and often his stepchildren) travelling to [Town 1] for the weekend, and he would rent a place that his sons could visit during the day. The applicant said that he did want to have overnight access and had applied to the Court for this, but he did not know that the Court would do, as he believed that his ex-wife would oppose this. He said that she had tried to break his bond with their children and that his sons were at times ambivalent towards him, which he believed was her doing. He stated that he nevertheless believed that the bond between himself and his sons was strong and that they wanted to spend more time with him if they could.

31.    The applicant said that his current superannuation beneficiaries were his father, his sons from his first marriage and his current wife. He said that he was currently working for [a named business]. He originally did [occupation 1 work] there but was now on lighter duties due to his [health] condition. He had worked there for 5 to 6 years on a full time basis.

32.    The applicant confirmed that he currently lives at his wife’s house, with her and her children. It is a 2 bed room house that she owns, but it is crowded because it currently accommodates the applicant, his wife and her 3 children: her daughter (born [in specified year]), and her 2 younger sons (born [in years] respectively). All 3 of the children lived at home, and the oldest was in [grade].  The applicant said that his wife was working a little bit from home, mostly [in occupation 2]. She was widowed about 3 years before she and the applicant met. They met through a mutual friend in [specified town]. The applicant said that his wife was not able to find much other work because her English was not that good. In response to the Tribunal’s query, the applicant said that he had a very good relationship with his step-children. He said that he took his responsibility as a father substitute seriously; he was teaching his step-daughter to drive and took his step-sons to [specified activities]. He described himself as being broken when he met his current wife, and that he felt a need to be with a family given he was prevented from seeing his own children.

33.    The applicant said that he and his wife had a joint bank account but he was the main breadwinner. He paid the car loan for the new car they bought last year, as they needed a bigger car due to the blended family. His wife did receive some Centrelink payment in relation to the children. They advised Centrelink when he moved in, and her payments were adjusted.

34. The Tribunal asked the applicant about his [health] condition. He said that he had an operation in [2014]. The operation weakened him and he needed to take [specified medication], and to [medical details]. He could do light duties and needed to be careful [with certain activities]. In response to the Tribunal’s query, the applicant said that his physical performance did improve after the operation but he remained anxious about potential complications or putting any strain on his [health]. He described himself as very health conscious now.

35.    The applicant said that his main fear, if his visa remained cancelled, was being separated from his children. He also said that he feared for his health if he had to leave Australia. The applicant said that his first wife had now remarried and he had heard that her new husband is a Hindu and wanted to change the children’s religion from Sikhism to Hinduism, which was very upsetting for the applicant. He had worked this out from talking to his sons, and while he did not object if his sons decided to change their culture or religion as adults, he objected to them being persuaded to do so while they were under 18.

36.    The Tribunal noted that even if the applicant’s subclass 457 visa were reinstated, it was a temporary visa and would most likely expire before the outcome of his pending partner visa application was known, but in any case, he was able to remain in Australia on a bridging visa until the outcome of his partner visa application. Therefore, it appeared that there was no compelling reason not to cancel the subclass 457 visa. The applicant said that he did not know much about the legal technicalities, but his focus was the children.

37.    The Tribunal put information to the applicant pursuant to s.359AA; namely, that in the Department decision to refuse the applicant’s partner visa, the delegate noted that the applicant did not raise his relationship with his sons from his first marriage in addressing the special circumstances criteria in Schedule 3. The Tribunal noted that this might undermine his claims at hearing that his relationship with his sons was very important to him, and that if the Tribunal accepted this, then this would be a strong factor in favour of cancelling the subclass 457 visa. The Tribunal asked the applicant if he wanted to respond now or ask for additional time to do so. The applicant indicated that he wished to respond immediately. He told the Tribunal that his ex-wife would not provide him with much information at that time.  He said that someone at the Department had told him that his sons obtained permanent residence in June 2018 but his ex-wife denied this.

38.    The Tribunal put further information to the applicant pursuant to s.359AA; namely, that in the Department decision to refuse the applicant’s partner visa, the delegate found that the applicant’s marriage to his current wife was contrived in order to secure a migration outcome after his subclass 457 visa was cancelled. The applicant elected again to respond immediately, and said that his ex-wife planned their separation, and she initiated their divorce and was the first to remarry. The applicant said this was distressing for him and he just wanted someone to care for him and who would accept his children. His current wife did this.

39.    In relation to his other family, the applicant confirmed that his parents and married sister are in India. He confirmed that he has been a volunteer with the Sikh community (as per the reference letter he provided) since August 2016.  They prepared food on Wednesdays and Saturdays and distributed this to needy and homeless people around [a specified location]. They also helped out with other community organisations and events, and provided free food.

40.    In response to further information put to him by the Tribunal pursuant to s.359AA, the applicant confirmed that his Australian Federal Police (AFP) check indicated that he was convicted on charges of unlawful assault and breaching an apprehended violence order (AVO) [in] May 2016. The Tribunal noted that this appeared to be a factor in favour of cancelling the visa. The applicant elected again to respond immediately and said that he was married to [Ms A] in 2003 and there were no issues until December 2015, when the incident that resulted in the AVO occurred. The applicant said that it was Christmas and he told his sons to ring their grandparents in India, and his wife took out an AVO and the police asked him to move out of their house. He then moved to Melbourne. He described himself as being very stressed and said he stopped eating and [experienced a medical condition]. He said he breached the AVO by calling his ex-wife to obtain his medical records (which she retained), because he did not realise that this breached the AVO. His ex-wife called the police, and then he had to explain this to the police. He apologised for this. He had to do 180 hours of community service. The applicant said that his ex-wife falsely accused him of attacking her, and that he had done nothing. She also said that he hit both the children and he denied this. He said that he was scared of her, and of what she might say against him in future, as she had threatened to kill herself and the children if he went to court about the children.

41.    When asked what effect it would have if he had to return to India, the applicant said that he came to Australia for a better future and his children, and he had spent his ‘golden years’ in Australia and he now had a new family here now. He had been here since March 2007, and had been back to India only 2 or 3 times in that time. The applicant said that another thing he wanted to say was that he was able to pay private health insurance in Australia and get better treatment for his [health] condition. He said that he would not be able to afford a similar level of care in India, nor would he be able to earn enough to support his children and step-children the way he could in Australia. His family in India were not in a position to assist him financially as his father was retired, his mother was a housewife and his sister’s responsibilities were to her husband’s family. He confirmed that he did work as [an occupation 1] in India but gave up work after being injured. He then came to Australia with his first wife, as she was going to study to achieve a better future for them all.

42.    In response to the Tribunal’s query, the applicant said that he had double responsibilities to his current wife and his step-children, as he had taken on the father role for the children, and he took this very seriously. His youngest step-son in particular had a close bond with him. It would affect them if he had leave Australia, even if it was temporarily. Financially, it would affect them significantly as he was the breadwinner and his wife was only able to do casual work at home due to her English and cultural expectations of her as a widow. He said he would be haunted by how they would manage.

43.    The Tribunal then took evidence from the applicant’s wife, [Ms B]. She confirmed that she and the applicant met through a mutual friend and were married in October 2016. She told the Tribunal that her first husband died of a [specified cause] in 2013, at which time her oldest child was [age].  This was very difficult for her and the children. [Ms B] said that the applicant had a very good relationship with her children, and it would have a terrible effect on her and them if he had to leave Australia, especially for her youngest son. It would be like losing his father again. She said that all of her children were very stressed by this prospect. Her daughter had had a few panic attacks at school this year, and her youngest son had become very quiet.

44.    [Ms B] confirmed that she did some [occupation 2] work from home, and she received child benefits from Centrelink but was mainly reliant on her husband for income. She said that she got very anxious and sick at the thought of the applicant having to leave Australia. She had been seeing a psychologist once a month due to this, which her husband took her to. It had been helping a bit but she was very stressed.

45.    In response to the Tribunal’s query, [Ms B] said that from her observation, the applicant had a continuing relationship with his sons from his first marriage, and that he saw them approximately fortnightly, on weekends, and also in the school holidays. She confirmed that he would travel to [Town 1] and stay there overnight to do this, and her children went with him on some occasions. She said that her children and his children got along quite well, especially her daughter and the applicant’s younger son.

46.    [Ms B] said that she did not understand why the Department refused the applicant’s partner visa as they were in a genuine relationship. [Ms B] told the Tribunal that she has no other family in Australia, as her siblings, parents and in-laws were in India. When asked about her husband’s health, [Ms B] said that he suffered from [a specified] condition. This made her anxious too.  [Ms B] said that the applicant’s current migration status put strain on their family, but also on her husband’s family in India, as he could not travel to India on his present visa and return to Australia, and his mother in India was not well. The applicant said that his mother had been hospitalised several times in India, but his family there had kept this from him. He found out through friends. It was difficult for his parents as their only grandchildren and the applicant were in Australia, and his married sister in India did not have children.

47.    The applicant and [Ms B] provided the following documents to the Tribunal:

·letter dated 31 October 2018 from the applicant’s GP confirming that he is under the care of a [specialist] and had an operation in November [2014]. He had regular follow ups and was now stable. He would have to take [specified medication] for the rest of his life, and also had depression (well-controlled) for which he saw another doctor;

·[operation] report for the applicant dated 11 December 2014;

·statutory declaration from [a named person] dated 4 November 2018, confirming that he has known the applicant since 2010, knew that he separated from [Ms A] and that he had accompanied the applicant to [Town 1] twice when the applicant went to see his children, and had witnessed the applicant provide cash for his children’s support;

·letter dated 17 September 2018 from [a second named person] of [Organisation 1] confirming that the applicant joined in August 2016 and helped in many of its activities including preparation, transport and distribution of food;

·initiating application (Family Law) by the applicant, seeking orders restricting his ex-wife from taking their children overseas permanently and allowing them to spend additional time with him (including overnight), listed for hearing [in] December 2018;

·statutory declaration dated 5 September 2017 by the applicant consenting to his ex-wife being the legal guardian with custody of their sons;

·online copy of the applicant’s superannuation beneficiary directions to his sons, his current wife and his father; and

·various scanned photographs of the applicant with his sons, his current wife and his step-children.

CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

48. 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?

s.116(1)(a) - Fact or Circumstance for visa grant no longer exists

49. 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.

50.    The relevant fact or circumstance that no longer exists is that which is the subject of the ministerial reflection and this does not extend to the Minister’s own state of mind, ie satisfaction[1]. A change in the Minister’s satisfaction, as such, is not a ‘changed circumstance’ or changed fact for the purpose of s.116(1)(a). In addition, the expression ‘no longer exists or is no longer the case' in s.116(1)(a) refers to the cessation of a state of affairs that did exist; it is not concerned with circumstances which later appear to have never existed.

[1] MIMA v Zhang (1999) 84 FCR 258, per French and North JJ at [54], per Merkel J at [74].

51. As noted in the delegate’s decision, a copy of which was provided with the review application, the Department was informed that the applicant’s marriage to his wife [Ms A], the primary subclass 457 visa holder, had ceased, and the delegate was therefore satisfied that there was a ground for cancellation under s.116(1)(a) because the applicant no longer met the visa criterion to be a member of his wife’s family unit. After considering the discretionary criteria and the applicant’s responses to the Notice of Intention to Consider Cancellation (NOICC) issued on 25 February 2016, the delegate decided to cancel the visa.

52.    There is no dispute that the spouse relationship between the applicant and [Ms A] had ceased in or about December 2015. At the first Tribunal hearing on 11 October 2016, the applicant confirmed that he lived apart from his wife and children and that he was no longer in an ongoing relationship with his wife since December 2015. He claimed that they were divorced [in] June 2016, although he provided no paperwork to support this. He further told the Tribunal at the second hearing in October 2018 that both his first wife [Ms A] had remarried after their divorce in mid-2016, and he had married [Ms B] in October 2016.  Accordingly, despite the lack of documentary evidence provided, the Tribunal accepts that the applicant and [Ms A] are divorced. As such, the Tribunal finds that the applicant is no longer in a spousal relationship with his former wife within the meaning of s 5F of the Act. Nor is there any other basis upon which he could be regarded as a member of her family unit within the meaning under r.1.12 as required by cl.457.321 for the grant of the visa.

53.    There is no evidence before the Tribunal that the applicant has been granted another substantive visa (although the Tribunal notes that he has applied for a subclass 820 (Partner - Temporary)/subclass 801 (Partner – Residence) visa on the basis of his relationship with an Australian citizen, [Ms B]).  This visa application was made on 13 February 2017 and was refused by the Department on 8 March 2017.  The applicant applied to this Tribunal for a review of that decision, and that review application is currently pending with another Tribunal Member.

54. The Tribunal is satisfied from the above that the applicant was granted his subclass 457 visa wholly on the basis of his membership of the primary visa applicant [Ms A’s] family unit as her spouse. The Tribunal further finds that this circumstance no longer exists. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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.

CONSDIERATION OF DISCRETION

55.    The Department’s guidelines[2] set out matters that as a matter of policy should be taken into account, where relevant, when considering whether to cancel a visa, whether temporary or permanent, under s.116. The Tribunal acknowledges that it is not bound by policy; however, it sees no reason to depart from it in the circumstances of this case, and in the interests of consistency of decision-making. The considerations listed in PAM3 are therefore addressed below.

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

[2] PAM3 Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140)’ – s116 - Deciding whether to cancel – Matters that should be considered (re-issue date 1 January 2019).

56.    The Tribunal is satisfied that the original purpose for the applicant’s travel to Australia was to accompany his now ex-wife, [Ms A], as her dependent while she held a student visa and then a temporary subclass 457 visa for which she was sponsored by her Australian employer. The Tribunal is satisfied that this purpose no longer exists as he is no longer [Ms A’s] dependant. It also observes that the subclass 457 visa the applicant was granted was a temporary visa that (had it not been cancelled) would in any case expire on 23 April 2019, and that, in that context, he could not necessarily ever have had an expectation of permanent resident status in Australia.

57.    The applicant originally told the Tribunal his biggest concern if his visa were cancelled was his children and that if he returned to India he would not be able to see them. However, at the time of the first Tribunal hearing, the applicant was subject to an intervention order issued in January 2016 which prevented him from having contact with his ex-wife or the children for 12 months.

58.    Since that time, the applicant told the Tribunal at the second hearing in October 2018 that he and [Ms A] have divorced, he has married [Ms B] and become a step-father to her 3 children, the intervention order in relation to his ex-wife and children has expired, he has intermittent contact with his sons from his first marriage subject to informal arrangements with his ex-wife and he has applied to the Family Court of Australia to have formal orders made regarding more regular contact with them, the outcome of which is unknown as at the time of this decision. 

59.    In addition, the applicant has advised the Tribunal that he applied for a subclass 820/801 (Partner) visa in Australia in February 2017 on the basis of his marriage to [Ms B] and that application is currently on review by the Tribunal (differently constituted) as it was refused by the Department in March 2017. The applicant has told the Tribunal that he currently holds a bridging visa permitting him to work and is the breadwinner for his wife and step-children, as his wife [Ms B] receives limited social security payments and works only casually from home doing [occupation 2] work. He stated that he has no formal child support assessment or obligations in relation to the children of his first marriage but pays some expenses for them intermittently. He further told the Tribunal that he has a close relationship to his step-children, particularly his youngest step-son, and that his step-children and his wife would be emotionally distressed if he were obliged to leave Australia, even for a temporary period pending the outcome of his subclass 820/801 Partner visa application.

60.    Finally, the applicant said that he had been able to afford a level of health care since his [operation] in Australia which he would not be able to afford in India, if he were to return there, and that this concerned him greatly. He also noted that he had been working for the same Australian employer for approximately 6 years now.

61.    The Tribunal is satisfied that the original purpose for which the applicant was granted a subclass 457 visa has ceased. Although the applicant has now submitted he has compelling reasons to nevertheless remain in Australia, the Tribunal notes that he holds a bridging visa E by virtue of his pending subclass 820/801 visa, which will not cease if the Tribunal affirms the cancellation of his subclass 457 visa, as it was issued to him in connection with his ongoing subclass 820/801 visa. Given this, and the fact that his subclass 457 visa would otherwise expire on 23 April 2019, almost certainly before he will receive an outcome from the Tribunal (differently constituted) in relation to his subclass 820/801 visa (in relation to which he would be entitled to remain in Australia while seeking Ministerial intervention pursuant to s.351 or while seeking judicial review in the event of a negative Tribunal outcome), it appears that the applicant will not be obliged to depart Australia immediately or in the foreseeable future if the subclass 457 visa cancellation is affirmed.

62.    When this was put to him at the second Tribunal hearing, the applicant said that he was unsure of the intricacies of migration law, but said that he remained concerned that he would have to depart Australia if his subclass 457 visa were cancelled.

63.    Taking the available evidence into account, the Tribunal considers that the purpose of the applicant’s travel to Australia no longer exists and, while there is some persuasive evidence of a compelling need for him to remain, there is nothing to indicate that he would have to depart if his subclass 457 visa is cancelled as he is the holder of the bridging visa E granted to him in connection with his pending onshore subclass 820/801 Partner visa application, and he will continue to hold this bridging visa even if his subclass 457 visa is cancelled.

64.    The Tribunal therefore considers that, overall, this factor weighs significantly in favour of cancellation.

The extent of compliance with visa conditions

65.    The submission made to the Department indicated that the agent has been instructed that there have been no other breaches.

66.    There is no evidence before the Tribunal to indicate any such non-compliance by the applicant with his visa conditions. The Tribunal attaches some limited weight to this factor as a reason not to cancel the visa.

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

67.    Given his changed circumstances since the first Tribunal hearing, the applicant now submits that a substantial degree of financial, psychological and emotional hardship would be suffered by his wife [Ms B] and his step-children with her, as he is the main breadwinner for the family since his marriage to [Ms B] in October 2016, and has a close emotional relationship with her and his step-children, particularly his youngest step-son. Despite the lack of documentary evidence provided, the Tribunal accepts that [Ms B] was widowed approximately 3 years before she met the applicant in 2016, and that she has 3 children, [details of children]. It further accepts that the family is substantially reliant on the applicant’s full time employment earnings to meet household expenses, although it notes that [Ms B] has some sporadic casual work, receives some child payments from Centrelink and owns the house in which the family lives.

68.    The Tribunal accepts that the applicant’s criminal matters, the intervention order against him in respect of [Ms A] and their children, and his divorce from [Ms A] have been finalised. He has now provided some documentation indicating he is seeking to formalise and regularise contact with his children through the Family Court but no decision appears to have been made as yet regarding this application.

69.    In considering any hardship resulting from his visa cancellation, the Tribunal would give a significant amount of weight to these factors, if cancellation of the applicant’s subclass 457 visa would in fact lead to him having to depart Australia. However, for the reasons set out above, the Tribunal does not accept that the applicant would lose his right to remain in Australia if his subclass 457 visa cancellation were affirmed by the Tribunal as it has identified that he has a separate basis for remaining in Australia as the holder of a bridging visa E (currently with work rights) until the outcome of his separate subclass 820/801 Partner visa is known.

70.    The Tribunal accepts that the applicant has some health concerns and that his stress levels may be adversely impacted by the cancellation of his visa (regardless of whether it leads to him having to depart Australia), and it attributes some weight to this concern.

71.    The Tribunal has also had regard to the applicant’s evidence regarding his period of settlement in Australia and his desire to remain living here and to continue to see his children from his first marriage.  It accepts that he would suffer some hardship, at least initially if he had to depart Australia, and it would attach some weight to this factor as a reason not to cancel the visa, if not for the fact that the applicant holds a bridging visa E permitting him to remain in Australia even if his subclass 457 visa is cancelled.

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

72.    It is not disputed that the applicant’s marriage to [Ms A] broke down in December 2015, and that she alleged that the applicant had been violent towards her and/or the children. Although this was denied by the applicant, it is also not disputed that an intervention order was issued against him January 2016 for 12 months prohibiting him from having contact with them, and that the applicant breached this order during its life and as a result was convicted of a breach and received a 180 hour community corrections order, which he has now completed. It is also not disputed that the intervention order expired in January 2017 and there is no evidence before the Tribunal that [Ms A] or any other party applied to have it extended.

73.    Accordingly, on the evidence before the Tribunal, the circumstances in which the ground for cancellation arose relate to the breakdown in the relationship between the applicant and his wife because of family violence allegations. On the face of the intervention order, it cannot be said that this was a circumstance beyond the applicant’s control because he was the alleged perpetrator of the violence. Given this, the Tribunal considers the circumstances weigh strongly in in favour of cancellation of the visa.  This conclusion is mitigated to some degree by the fact that the applicant evidently now has some informal contact with his children from his first marriage, is no longer subject to the intervention order and has applied formally to have greater and/or more regular contact with the children from his first marriage.

Past and present conduct of the visa holder towards the Department

74.    The applicant’s representatives submitted that there were no allegations made that the applicant had not co-operated with the Department.

75.    The delegate noted that there was no information available regarding the applicant’s behaviour towards the Department that would provide a reason to cancel the visa. 

76.    At both the Tribunal hearings, the applicant denied that he had failed to co-operate with the Department. There is nothing before the Tribunal which indicates otherwise.

77.    The Tribunal attaches some weight to this factor as a reason not to cancel the visa.

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

78.    As noted by the delegate, cancellation of the visa would potentially result in the applicant becoming an unlawful non-citizen and liable for detention and removal if he did not apply for a BVE or depart voluntarily. It was further noted that the applicant would be subject to s.48 of the Act and would have limited options to apply for another visa.

79.    It was originally submitted on his behalf that the consequences of cancellation would effectively deny him procedural fairness in relation to his family and criminal law matters and would also mean that he would be denied access to his children and lose his work rights.

80.    However, the Tribunal is satisfied that the applicant has now applied for a subclass 820/801 (Partner) visa onshore, as this visa category is not affected by s.48 of the Act. He is awaiting the outcome of that application which is currently on review at the Tribunal (differently constituted). As noted above, the applicant is currently on a BVE and has work rights. His criminal law matters have been heard and determined. The Tribunal accepts that the applicant has an ongoing family law matter, the status of which is unclear, but which appears as yet to be undetermined, in relation to having formal contact with the children of his first marriage. His divorce is finalised and he is no longer subject to an intervention order in relation to his first wife or their children.

81.    At the second Tribunal hearing, the applicant confirmed that all his immediate family remained in India, aside from his children, but that he now has a wife and step-children in Australia who are emotionally and financially reliant on him.

82.    Therefore, as noted above, the Tribunal assesses that the applicant will be entitled to remain in Australia as a bridging visa E holder until the outcome of his subclass 820/801 visa is known, even if his subclass 457 visa (which would in any case have expired in approximately 2 months if not already cancelled) were cancelled.

83.    In this context the Tribunal does not consider there is anything in these factors which weighs against cancellation of the subclass 457 visa.

Whether there would be consequential cancellations under s.140

84.    The Tribunal is satisfied that there would be no consequential cancellations pursuant to s.140.

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

• if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

• whether the cancellation would lead to removal in breach of Australian’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment;

85.    The Tribunal has considered these obligations, referring specifically to the Convention on the Rights of the Child (CROC) and the Refugee Convention.

86.    The applicant did not make any claims relevant to the second factor, but he did state that he had now been in Australia for over 9 years, would struggle to find employment if returned to India and feared that his health would suffer if he were to go back there.

87.    In relation to CROC, the applicant told the Tribunal at his second hearing that he wants to see and support his children from his first marriage but if his visa is cancelled, he feared he would not be able to see them again. He argued that this would not be good for them. He also told the Tribunal that his step-children from his marriage to [Ms B] would be significantly affected if his subclass 457 visa remained cancelled and he had to depart Australia (even temporarily) as they are emotionally and financially reliant on him being the breadwinner in the household since their father died and he married their mother in October 2016. The applicant maintained that he had a particularly close relationship to his youngest step-son, who regarded him as a father figure. [Ms B] gave evidence consistent with this, to the effect that (in addition to the stress she would feel if separated from her husband) she was very concerned about the effect of any separation on her children, given they had already had to cope with the death of their biological father.

88.    The Tribunal notes that the Article 3(1) of CROC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 9 concerns the principle that children not be separated from their parents against their will except in specified circumstances. It is clear that cancellation of the applicant’s visa would be an “action concerning children”: see, for instance, MIMA v Teoh (1994) 183 CLR 273. The Tribunal also notes, however, that Article 9(4) of CROC contemplates that a parent may legitimately be separated from children through deportation. In addition, the fact that the applicant holds a bridging visa E issued to him upon the lodgment of his as yet undetermined subclass 820/801 visa, means that he is entitled to remain in Australia until the outcome of that application, regardless of whether or not the Tribunal affirms the cancellation of his subclass 457 visa (which would in any case expire on 23 April 2019, had it not been cancelled).

89.    In the context of this review application, and in view of the above discussion, the Tribunal is therefore not satisfied that Australia’s international obligations under CROC would necessarily be breached as a result of cancellation of the applicant’s visa. 

90.    There is no other evidence or claim before the Tribunal that the cancellation of the applicant’s visa would lead to him falling within the definition of a refugee or that Australia would otherwise breach any of its international obligations.

91.    The Tribunal does not consider anything in this factor weighs in favour of or against cancellation of the visa.

Any other relevant matters

92.    The applicant has told the Tribunal that in Australia, he has his own social circle, has commitment to volunteering for the Sikh and wider community, has been in steady employment, and that in his 9+ years in Australia, he had only returned to India twice.

93.    The Tribunal acknowledges that the applicant has been living in Australia for a substantial period.

CONCLUSION

94.    The Tribunal acknowledges that there are some factors that point against cancellation of the applicant’s visa, including his quite lengthy period of time living in Australia, his positive behaviour towards the Department generally, his health condition, his current marriage to an Australian citizen through which he is now a step-father to 3 Australian children, plus his ongoing attempt to have regular contact with his sons from his first marriage, who appear to have become Australian permanent residents since his divorce from their mother.

95.    Conversely, however, the Tribunal finds that these are not sufficient to outweigh the reasons in favour of cancellation. The applicant was granted the relevant visa the purpose of accompanying his first wife to Australia for the duration of her temporary visa. That relationship has now ended and the subclass 457 visas would in any case cease on 23 April 2019. 

96.    Moreover, the Tribunal finds that the applicant already has a separate legal entitlement to remain in Australia as a bridging visa E holder with work rights until his subclass 820/801 Partner visa application is finally determined.

97.    Having regard to the findings above and the circumstances of the case as a whole, individually and cumulatively, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.

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

DECISION

99.    The Tribunal affirms the decision to cancel the applicant’s subclass 457 (Temporary Work (Skilled)) visa.

Alison Mercer
Member