Gomes Soares (Migration)

[2024] AATA 2968

Gomes Soares (Migration) [2024] AATA 2968 (7 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafael Gomes Soares

REPRESENTATIVE:  Mr Marcelo Mota Fukuoka (MARN: 1460957)

CASE NUMBER:  2410195

HOME AFFAIRS REFERENCE(S):          BCC2023/2568165

MEMBER:Karen McNamara

DATE:7 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 07 August 2024 at 10:24am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – relationship ceased in Australia – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 360
Migration Regulations 1994, Schedule 3, cl 485.311; r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 April 2024, made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. Mr Rafael Gomes Soares (the applicant) has provided to the Tribunal a copy of the delegate’s decision record. It records that on 13 December 2022, the applicant was granted a Temporary Graduate visa on the basis that he was a member of the family unit of the primary applicant, Ligia De Deus Schultz. The delegate records that on 28 April 2023, the Department was notified that the applicant’s relationship with Ligia De Deus Schultz had ended. The decision record shows that the applicant did not respond to the Department’s Notice to dispute that grounds exist for the cancellation of the visa. In the absence of information before the Department that the applicant and Ligia De Deus Schultz had reconciled their relationship, the delegate found the applicant no longer meets the definition of a member of the family unit of Ligia De Deus Schultz.

3. On 10 April 2024, the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant did not respond to this notice.

4. On 22 April 2024, the delegate cancelled the visa under s.116(1)(a) of the Act on the basis that a prescribed ground for cancelling the visa applied to the applicant. That is, the applicant is no longer a member of the family unit of Ligia De Deus Schultz as per r. 1.12 (2) (a) of the Regulations, and therefore no longer meets the requirements of cl.485.311 of the Regulations.

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

6. On 25 June 2024, the Tribunal invited the review applicant under s.360 of the Act to appear before the Tribunal via Microsoft Teams video conference on 30 July 2024 at 11:00am (NSW time).

7. The invitation was sent to the applicant’s authorised recipient/representative via the last email address provided in connection with the review.

8. On 23 July 2024, the authorised recipient/representative provided to the Tribunal a completed response to the hearing invitation indicating that the applicant would not be participating in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allowing him to appear.

9. In accordance with the authorised recipient/representatives request on behalf of the applicant, the Tribunal has resolved this matter on the papers.

10. The applicant was represented in relation to the review.

11. 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

12. 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?

13. 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.

14. In this case the delegate’s decision record (provided to the Tribunal by the applicant) shows the delegate found that the applicant was no longer a member of the family unit of the primary visa holder, Ligia De Deus Schultz.

15. The delegate records that on 28 April 2023, the Department was notified that the applicant’s relationship with Ligia De Deus Schultz had ended. The decision record shows that the applicant did not respond to the Department’s Notice to dispute that grounds exist for the cancellation of the visa. In the absence of information before the Department that the visa holder and Ligia De Deus Schultz had reconciled their relationship, the delegate found the applicant no longer met the definition of a member of the family unit of Ligia De Deus Schultz.

16. On 10 April 2024, the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant did not respond to the notice and therefore did not provide reasons why the visa should not be cancelled.

17. There is no evidence before the Tribunal to support the parties have reconciled.

18. On the evidence before it, the Tribunal is satisfied that the applicant is no longer a member of the family unit of the primary visa holder and therefore the ground for cancellation in s 116(1)(a) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

19. 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 the entirety of the evidence before it, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    Background

20. The applicant is a 34-year-old citizen of Brazil. He first arrived in Australia on a student visa on 30 October 2017. On 13 December 2022, the applicant was granted a Temporary Graduate visa on the basis that he was a member of the family unit of the primary applicant, Ligia De Deus Schultz. The visa was granted for the period 13 December 2024 to 13 December 2024. On 11 June 2024 the applicant was granted a Bridging visa E (subclass 050).

    Assessment of the Evidence:

    The purpose of the visa holder’s travel and stay in Australia

21. In exercising its discretion, the Tribunal has first considered whether the visa holder has a compelling need to travel to or remain in Australia.

22. The Tribunal notes the purpose of the grant of this visa was for the applicant to accompany his former partner in Australia following her graduation whilst she undertook skilled employment in Australia. The applicant was granted the visa on the basis that he was a member of the family unit of the primary visa holder, Ligia De Deus Schultz.

23. Information before the Tribunal shows that the applicant is no longer in a relationship with the primary visa holder and therefore is no longer a member of the family unit of the primary visa holder. The Tribunal, therefore, is not satisfied that the applicant has continued to engage in activities for the purpose the visa was granted.

24. There is no information before the Tribunal to support the applicant’s need to remain in Australia. The Tribunal therefore having afforded consideration to the purpose to which the applicant was granted the subclass 485 visa, gives this consideration significant weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

25. There is no information before the Tribunal that the applicant did not comply with any other conditions on his visa.

26. The Tribunal gives this consideration minimal weight against cancelling the visa.

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

27. There is no probative evidence before the Tribunal to indicate the degree of hardship the applicant may suffer if the visa is cancelled.

28. The Tribunal acknowledges that the applicant may suffer some financial, psychological, emotional, or other hardship if the visa is cancelled, however, there is no persuasive evidence before the Tribunal to support the current financial position of the applicant and how a visa cancellation outcome would impact the applicant financially, psychologically and emotionally. In the absence of evidence to support the degree or severity of hardship that cancellation of the visa may cause the visa holder, the Tribunal cannot be satisfied that that it will be serious and therefore gives this consideration minimal weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose

29. The Tribunal has had regard to the evidence before it as to the circumstances in which the ground for cancellation arose. In this instance, the ground for cancellation arose because the applicant is no longer in a relationship with the primary visa holder and therefore the applicant was no longer a member of the family unit of a person who holds a Subclass 485 visa.

30. In the absence of evidence supporting the circumstances contributing to the relationship breakdown, the Tribunal is unaware of any extenuating circumstances beyond the control of the applicant warranting its consideration of this discretionary factor. The Tribunal therefore considers that the grounds for which the visa was granted ceased to exist when the relationship ended, as reported to the Department on 28 April 2023.

31. Having afforded consideration to the circumstances in which the ground of cancellation arose, the Tribunal affords this consideration considerable weight for cancelling the visa.

    Past and present behaviour of the visa holder toward the Department

32. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration minimal weight against cancelling the visa.

    Whether there would be any consequential cancellations under s.140

33. There are mandatory consequences in the cancellation of the applicant’s visa, including difficulties for the applicant in obtaining any further visas.

34. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant will have limited options to apply for further visas in Australia following the expiry of his current Bridging visa.

35. The Tribunal gives this consideration minimal weight against cancelling the visa.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

36. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

37. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

38. Information before the Tribunal indicates the visa application lodged by Ligia De Deus Schultz, included a dependent child under the age of 18 years old. Information before the Tribunal shows that the applicant is not the biological father of the dependent child. The visa holder did not provide information in response to the NOICC to indicate the level of their involvement in the care of the dependent child nor is there information before the Tribunal to demonstrate the current status of the relationship and any dependency between the child and the applicant.

39. Having consideration to the information before it, the Tribunal finds that the cancellation of the applicant’s visa would not lead to a breach of Australia’s international obligations. The Tribunal therefore places no weight to this consideration as favouring the applicant.

    Any other relevant matter

40. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are aspects that are slightly favourable to the applicant as outlined above. Overall, however, having considered all the information before it, the Tribunal considers it significant that the applicant was granted his Subclass 485 visa as a member of the family unit of his former partner. The applicant has not engaged with the Department or the Tribunal to dispute that he is no longer a member of the family unit of Ligia De Deus Schultz and that the relationship formally ceased in April 2023.

41. Having consideration to the entirety of the evidence before it and the circumstances presented as a whole, the Tribunal concludes on balance that the visa should be cancelled.

    DECISION

42. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Karen McNamara
    Member